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WAS  SHAKESPEARE 
-      A  LAWYER? 


AN   ADDRESS    BY 


JOHN    H.  SENTER, 

PRESIDENT  OF  THE  VERMONT  BAR  ASSOCIATION. 


DELIVERED  BEFORE  THE  ANNUAL  MEETING, 
OCTOBER  27,  1903. 


MONTPELIBR.  VX. 

ARGUS  AND  PATRIOT  PRESS 
1903. 


COPYRIGHT,  1903. 
All  Rights  Reserved. 


WAS  SHAKESPEARE 
A  LAWYER? 


Gentlemen  of  the   Vermont  Bar  Association : 

Your  constitution  provides  that  your  President  shall  de- 
liver an  address  at  your  annual  meeting,  and  while  1  think 
in  the  present  case  that  provision  would  be  more  honored  in 
the  breach  than  in  the  observance,  yet  in  accordance  with 
your  constitution  and  custom,  I  have  prepared  a  paper  upon 
the  subject — Was  Shakespeare  a  Lawyer? 

This  question  has  often  been  discussed  as  a  part  of  the 
Baconian  Theory.  Advocates  of  that  theory  claim  to  prove 
that  Bacon  wrote  these  plays  instead  of  Shakespeare,  by 
showing  that  it  was  impossible  for  a  man  of  Shakespeare's 
training  to  have  had  such  knowledge  of  legal  terms  and 
legal  procedure  as  is  shown  in  his  plays,  and,  therefore, 
that  they  must  have  been  written  by  Bacon,  who  was  a  good 
lawyer.  It  has  also  been  discussed  on  the  other  side  by 
many  who  claim  that  by  reason  of  the  many  mistakes  in 
law,  geography,  and  other  matters  contained  therein,  they 
could  not  have  been  written  by  Bacon,  as  he  was  acknowl- 
edged to  be  accurate  in  all  such  matters. 

It  has  also  been  discussed  independently  of  the  Baconian 
Theory,  and  has  received  the  attention  in  all  its  aspects  of 
noted  lawyers,  both  in  England  and  America,  among  whom 
may  be  named  Lord  Campbell,  Judge  Holmes,  Senator 


2032468 


Cushman  K.  Davis,  and  many  others,  who  have  shown  in 
the  discussion  of   this  question  great  research,  talent   and 
erudition. 

In  discussing  this  question,  I  cannot,  in  the  short  time  to 
which  this  address  must  be  limited,  attempt  to  answer  all 
the  arguments  of  those  who  believe  in  Shakespeare's  legal 
acquirements.  I  can  only  cite  a  few  of  the  passages  in  his 
various  plays  which  are  claimed  to  show  most  clearly  that 
the  writer  must  have  had  a  legal  education  to  have  been  able 
to  express  himself  so  accurately  in  the  technical  language  of 
the  law ;  and  to  point  out  a  few  of  the  sources  from  which 
the  legal  language  comes  when  it  is  used  properly  ;  and  to 
show  in  a  few  other  cases  where  he  has  entirely  miscon- 
ceived the  legal  effect  of  the  terms  which  he  uses. 

It  was  174  years  after  the  death  of  Shakespeare  that  the 
theory  that  he  had  spent  any  time  in  a  lawyer's  office  was 
first  brought  out,  in  the  work  of  Malone,  published  in  1790, 
in  which  24  passages  were  cited  in  support  of  the  conten- 
tion. 

It  has  been  surmised  by  those  who  seek  to  show  this 
special  legal  knowledge  in  Shakespeare  that  from  1579, 
when  he  was  taken  from  school,  until  1586,  when  it  is  said 
he  went  to  London  and  commenced  his  career  as  an  attache 
of  the  theatre,  he  spent  his  time  in  a  lawyer's  or  attorney's 
office  poring  over  the  works  of  Glanville,  Bracton,  Fleta, 
Britton  and  Littleton,  the  fathers  of  the  common  law,  and 
in  that  time  acquired  such  an  insight  into  the  principles  of 
the  science  of  jurisprudence  that  he  was  able  to  weave  into 
a  large  number  of  his  plays  many  of  the  technical  terms  of 
the  old  common  law,  and  properly  to  apply  its  principles  in 
many  instances. 

It  is  true  that  Shakespeare  uses  legal  words  and  phrases 


many  times  in  his  plays,  and  often  uses  them  correctly  ;  and 
it  is  also  true  that  in  some  of  the  plays  there  is  little,  if  any- 
thing, that  indicates  any  knowledge,  technical  or  otherwise, 
of  the  law. 

Before  I  enter  into  an  argument,  based  on  the  evidence 
found  within  his  works,  as  to  whether  Shakespeare  was  or 
was  not  a  lawyer,  a  doctor,  a  butcher,  or  a  sailor,  I  wish  to 
call  attention  to  a  few  external  facts  regarding  this  matter. 

It  is  conceded  that  about  1579  Shakespeare  was  taken 
from  the  grammar  school  at  Stratford  by  reason  of  his 
father's  financial  distress. 

In  Shakespeare's  day,  to  become  a  lawyer  was  very  ex- 
pensive and  difficult.  Admissions  to  the  Bar  were  matters 
of  time,  study  and  expense.  Twelve  years  of  instruction 
and  study  were  required  before  a  student  could  plead  in  any 
Court  in  Westminster,  or  even  subscribe  his  name  to  a  plead- 
ing. Candidates  for  admission  to  the  Bar  in  those  days  must 
have  means  sufficient  to  support  them  during  Ihe  twelve  years 
in  which  they  were  non-producers.  The  law  was  then  ex- 
clusively the  calling  of  the  wealthy,  and  the  poverty  of 
Shakespeare's  father  and  family  would  have  been  an  abso- 
lute bar  to  Shakespeare's  entering  that  profession  had  he 
had  ever  so  much  inclination  so  to  do. 

That  he  did  not  go  to  London  and  enter  any  of  the  inns 
of  court  as  a  student  is  certain,  but  it  is  insisted  by  some  that 
he  may  have  entered  the  office  of  some  attorney  at  Stratford 
and  spent  those  years  which  have  never  been  positively  ac- 
counted for  as  an  attorney's  clerk ;  but  had  it  been  the  inten- 
tion of  the  family  that  Shakespeare  should  prosecute  the 
study  of  this  learned  profession,  it  does  not  seem  natural  or 
probable  that  he  would  have  been  taken  from  school  at  the 
early  age  of  fifteen.  Much  more  likely,  so  far  as  probabili- 


ties  go,  are  the  traditions  that  he  was  a  school-teacher,  or 
that  he  was  apprenticed  to  a  glover,  a  butcher,  or  assisted 
his  father,  who  was  a  wool  merchant.  But  the  financial  re- 
verses of  his  father  which  caused  his  withdrawal  from  school, 
make  almost  a  conclusive  presumption  that  he  never  entered 
upon  the  study  of  law  during  those  years  between  1579  and 
1586.  It  also  appears  that  when  about  eighteen  years  of  age 
he  married  his  wife,  who  was  some  seven  or  eight  years 
older  than  he,  and  shortly  after  that  marriage  his  family  in- 
creased and  he  had  it  to  provide  for. 

There  is  another  piece  of  external  evidence  which  might 
not  appeal  so  strongly  to  laymen  as  to  members  of  our  pro- 
fession, and  that  is,  a  man  who  has  made  the  law  a  study  is 
very  much  less  likely  to  violate  law  than  one  who  has  not, 
and  from  the  best  authorities  it  seems  that  Shakespeare  was 
not  very  careful  in  that  respect.  He  was  a  poacher,  and 
many  times  complained  of,  reprimanded  and  punished  for 
his  encroachments  upon  the  preserves  of  Sir  William  Lucy, 
and  that  he  was  finally  prosecuted  for  deer  stealing  is  given 
as  the  reason  why  he  left  his  wife  and  children  at  S.tratford 
and  went  up  to  London.  Had  he  been  engaged  in  the  study 
of  law,  he  would  have  acquired  such  a  respect  for  law  that 
he  would  not  have  been  a  constant  law-breaker  during  that 
period  of  his  life. 

A  court  was  held  every  fortnight  at  Stratford,  and  it  ap- 
pears from  that  part  of  the  records  which  has  been  preserved 
that  his  father  was  engaged,  either  as  plaintiff  or  defendant, 
in  about  fifty  suits  at  law ;  that  he  served  on  the  manorial 
jury,  as  an  assessor  of  fines  and  as  an  arbitrator. 

Stratford  at  that  time  had  about  1,800  inhabitants,  but  no 
particular  intercourse  or  commerce  with  other  places.  So 
it  would  seem  that,  having  half  a  dozen  or  more  lawyers, 


the  inhabitants  thereof  were  prone  to  litigation,  and  in  a 
country  town  of  so  small  population,  of  course  the  court's 
business  was  everybody's  business,  and  was  generally  dis- 
cussed. 

His  father  held  an  important  position  in  Stratford ;  for 
over  twenty  years  he  was  in  office ;  part  of  this  time  he  was 
High  Bailiff,  and  presided  in  this  court.  From  his  father's 
experience  and  from  these  associations,  Shakespeare  must 
have  gained  considerable  legal  lore,  but  it  will  be  noticed 
throughout  all  his  works  there  are  no  allusions  to  the  Court 
of  Chancery. 

Shakespeare's  father,  also,  was  connected  with  many 
transactions  in  real  estate  which  called  for  the  advice  and 
assistance  of  a  lawyer.  In  1575  he  purchased  two  houses 
in  Stratford ;  in  1578  he  mortgaged  the  estate  of  Asbies ;  in 
1587  a  suit  was  commenced  against  him  to  recover  ten 
pounds  upon  an  obligation  upon  which  he  was  surety  for 
his  brother.  He  made  many  mortgages  and  other  convey- 
ances, all  of  which  must  have  come  to  the  attention  of 
Shakespeare. 

In  1589  there  was  instituted  in  the  Court  of  the  Queen's 
Bench  the  case  of  John  and  William  Shakespeare  vs. 
Edward  Lambert,  who  was  the  mortgagee  of  the  Asbies 
property ;  and  this  suit  was  brought  to  recover  said  prop- 
erty. In  1597  another  bill  by  the  same  plaintiffs  for  the 
same  cause  of  action  was  brought,  and  Lambert  made  an- 
swer, to  which  both  the  Shakespeares  replied. 

Shakespeare's  own  experience  in  the  law  was  not  incon- 
siderable. He  bought  several  parcels  of  real  estate  and 
several  houses  in  Stratford,  and  had  to  do  with  real  estate 
transactions  by  the  way  of  deeds  and  leases  in  London.  He 
appears,  both  as  plaintiff  and  defendant,  in  many  cases  in 


8 

the  court  records  of  his  day.  His  father's  experience  in  law 
was  unfortunate,  and  that  may  account  for  the  aversion  which 
he  shows  to  courts. 

It  also  must  be  taken  into  consideration  in  all  discussion 
of  Shakespeare's  legal  acquirements  that  many  words  con- 
cerning legal  transactions,  and  especially  conveyances,  that 
are  confined  to  the  knowledge  of  the  lawyer  today,  were 
words  of  common  use  and  knowledge  to  people  who  were 
not  lawyers  in  the  day  of  Shakespeare.  We  should,  there- 
fore, exercise  a  great  deal  of  care  that  we  do  not  confound 
the  knowledge  of  those  words  which  in  Shakespeare's  day 
was  general  among  all  classes,  with  the  knowledge  of  those 
words  today,  when  they  have,  by  their  disuse  in  common 
parlance,  become  exclusively  confined  to  the  technical 
knowledge  of  the  Bar.  Many  of  these  words,  which  are 
now  mere  technical  survivals  of  a  past  era  in  jurisprudence, 
were,  at  the  time  when  Shakespeare  wrote,  common  expres- 
sions not  only  of  the  Bar,  but  of  people  familiar  with  real 
estate  transactions.  Terms  which  today  indicate  research 
and  training  in  the  law  were  then  ordinary  expressions  and 
were  well  understood,  and  it  did  not  require  that  technical 
knowledge  to  understand  them  that  it  does  today.  When  a 
lawyer  today  speaks  of  fine  and  recovery  a  layman  does  not 
understand  it,  because  there  is  no  such  procedure,  but  in 
Shakespeare's  day  it  was  a  common  transaction,  as  well 
known  as  a  deed  of  quit  claim  or  warranty  is  today.  The 
writ  of  i>raemunire  was  a  common  writ  in  Shakespeare's 
day,  and  of  common  talk,  because  it  was  used  from  Henry 
the  Eighth  down  to  a  little  past  Shakespeare's  day  for  the 
purpose  of  taking  property  from  the  death  grip  of  the 
churches  and  monasteries  to  fill  the  coffers  of  the  King. 

In  the  Elizabethan  era  there  was  a  great  revival  in   all 


branches  of  learning.  This  revival  was  largely  due  to  the 
action  of  Henry  the  Eighth,  who  had  divorced  England 
from  the  Roman  Church  on  account  of  some  little  misunder- 
standing between  himself  and  the  Pope  regarding  his  various 
personal  divorces,  and  in  consequence  of  that  separation  he 
had  abolished  the  many  monasteries  that,  up  to  his  time,  had 
been  scattered  over  England  and  had  been  the  home  of  a 
large  number  of  learned  men.  Up  to  the  time  the  clericals 
were  put  upon  their  own  resources  to  earn  their  daily  bread, 
nearly  all  education  in  law,  medicine,  and  other  science  was 
confined  to  the  cloisters,  whose  inmates  had,  during  the  dark 
ages,  kept  alive  the  lamp  of  learning,  but,  turned  out  of 
house  and  home,  they  flocked  to  London,  and  began  to 
write  and  give  the  public  the  benefit  of  their  knowledge  and 
education,  which  stimulated  a  great  public  interest  in  gen- 
eral learning.  The  spirit  of  the  time  was  favorable  to  the 
diffusion  of  legal  knowledge,  and  Shakespeare  undoubtedly 
associated  with  many  of  these  men,  and  might  thus  have  ac- 
quired the  scientific  knowledge  which  he  has  so  woven  into 
his  dramas. 

About  the  time  that  Shakespeare  went  to  London,  there 
were  many  legal  treatises  published,  and  the  lawyer's  library 
grew  from  a  few  meagre  volumes  to  a  large  number  of 
works  on  various  subjects.  Pulton's  ''Abstract  of  Penal 
Statutes"  was  published  in  1577 ;  Tholoal's  "Digest  of 
Original  Writs"  in  1579;  Brooke's  "Abridgement  of  the 
Law"  in  1568;  Rastall's  "Termes  de  la  Ley"  in  1572  ; 
"Kitchen  on  Courts"  in  1580;  "Crompton  on  the  Office  and 
Authority  of  a  Justice  of  the  Peace"  in  1583  ;  Rastall's 
"Entries"  in  1596;  "Marwood  on  Forest  Law"  in  1568; 
and  in  the  year  that  Shakespeare  came  up  to  London  the 
first  volume  of  The  Reports  was  published,  which  contained 


notes  of  cases  made  by  Chief  Justice  Dyer.  Plowden's  Com- 
mentaries, or  Reports,  were  published  in  1571,  and  besides 
this  Sir  Edward  Coke  had  begun  to  shed  his  light  upon  the 
legal  world. 

Lawyers  at  that  time  were  great  patrons  of  the  theatre, 
and  frequenters  of  houses  of  public  entertainment.  That 
lawyers  met  frequently  at  the  taverns  and  ordinaries  appears 
from  the  contemporaneous  literature  of  the  day. 

Dekker,  in  his  Gull's  Hornbook,  says:  "There  is  an- 
other ordinary  at  which  your  London  usurer,  your  stale 
bachelor,  and  your  thrifty  attorneys  do  resort ;  the  price, 
threepence ;  the  rooms  as  full  of  company  as  a  gaol.  If 
they  chance  to  discourse,  it  is  of  nothing  but  statutes,  bonds, 
recognizances,  audits,  subsidies,  rents,  sureties,  enclosures, 
liveries,  indictments,  outlawries,  feoffments,  judgments, 
commissions,  bankrupts,  amercements,  and  of  such  horrible 
matter."  And  it  is  very  probable  that  Shakespeare  dined 
frequently  at  this  ordinary  in  Alsatia,  because  when  he  first 
went  to  London  he  had  little  money,  and  with  his  great  tal- 
ent for  absorbing  knowledge  from  others  he,  undoubtedly, 
got  a  smattering  of  legal  lore  from  this  source ;  and  he  must 
have  been  intimate  with  the  students  of  the  inns  of  Court 
who  were  in  the  habit  of  playing  before  Queen  Elizabeth  at 
Greenwich,  as  he  took  part  in  those  theatricals. 

Many  plays  were  presented  at  the  different  Inns  of  Court ; 
Shakespeare's  Comedy  of  Errors  at  Gray's  Inn,  Twelfth 
Night  at  the  Inner  Temple,  and  Othello  was  given  at  Lord 
Chancellor  Ellsmere's  before  Queen  Elizabeth.  Several  of 
those  playwrights  and  poets  with  whom  Shakespeare  was 
intimately  associated  had  been  bred  to  the  law,  and  while 
he  was  in  London  his  associations  must  have  been  largely 
with  men  deeply  versed  in  legal  technicalities.  Is  it  to  be 


II 

wondered  at  that  Shakespeare,  with  his  great  power  of  ab- 
sorption and  assimilation,  should  have  gathered  from  this 
atmosphere  the  legal  information  which  his  works  disclose? 

There  were  many  words  very  common  to  the  lawyers  of 
those  days,  and  especially  real  estate  lawyers,  (and  I  say 
real  estate  lawyers  because  most  advocates  of  the  theory  that 
Shakespeare  was  a  lawyer  claim  that  those  seven  years  were 
passed  in  the  office  of  a  conveyancer),  which  are  never  used 
in  Shakespeare's  works.  The  words  donor,  donee,  vendor, 
vendee,  grantor,  grantee,  estop,  escheat,  evict,  apportion, 
apportionment,  levy,  contingent,  contingent  remainder,  feoff- 
ment,  abeyance,  corody,  mortmain,  estovers  and  emble- 
ments,  and  many  others  of  that  ilk  cannot  be  found  in  his 
works,  but  these  words  were  all,  in  Shakespeare's  time,  in 
every-day  use  in  offices  that  made  conveyancing  their 
business. 

Shakespeare  used  legal  terms  in  no  greater  proportion  to 
technical  terms  of  other  arts  and  sciences  than  the  impor- 
tance of  the  law  justifies  from  any  writer,  but  he  used  many 
law  terms  not  in  their  legal  sense,  and  many  of  them  erro- 
neously. For  instance,  in  King  Lear,  Act  i ,  Scene  i  : 

"We  have  this  hour  a  constant  will  to  publish 
Our  daughters'  several  dowers,  that  future  strife 
May  be  prevented  now." 

And  then  Lear  proceeds  to  divide  his  kingdom  and  give 
it  to  his  daughters.  And  in  All's  Well  that  Ends  Well, 
Act  4,  Scene  4,  Helena  says  : 

"Doubt  not  but  heaven 
Hath  brought  me  up  to  be  your  daughter's  dower." 

That  is,  Helena  was  to  be  the  third  part  of  the  real  estate 


12 

of  which  Diana's  husband  should  die  seized — an  unlaw- 
yerlike  as  well  as  ungallant  use  of  the  word.  It  evidently 
is  used  here  in  the  sense  of  dowry.  Shakespeare  the  law- 
yer, and  Shakespeare  the  man,  who  had  spent  seven  years 
in  a  conveyancer's  office,  calls  it  dower.  Referring  to  the 
books  which  were  authority  in  the  days  of  Shakespeare, 
we  find  in  Glanville  the  following  definition  for  dower : 
"The  third  part  of  all  such  freehold  lands  as  her  husband 
held  at  the  time  of  affiancing,  and  of  which  he  was  seized 
in  his  demesne,  is  termed  a  woman's  reasonable  dower."1 
Not  what  her  father  gave  her ;  that  was  her  dowry,  not  her 
dower.  Referring  to  Bracton  we  get  practically  the  same 
definition,  and  from  Littleton,  "Dower  was  the  woman's  life 
interest  in  the  lands  of  which  her  husband  died  seized,  for 
her  and  her  children's  nutriment  and  support."2 

Dowry,  or  dos,  was  that  portion  which  was  given  to  her 
by  her  father  or  her  friends  at  her  marriage,  and  had  noth- 
ing whatever  to  do  with  dower,  and  any  boy  that  had  served 
a  term  with  a  lawyer's  firm  ought  to  know  the  difference  and 
the  legal  distinction  between  dowry  and  dower,  but  of  this 
distinction  Shakespeare  seems  to  have  had  no  legal  apprecia- 
tion. Although  he  uses  the  word  dower  seventeen  times,  in 
only  one  place  do  I  find  the  word  rightly  used,  and  that  is  in 
The  Taming  of  the  Shrew,  Act  2,  Scene  i,  where  Baptista 
says  to  Tranio : 

"I  must  confess  your  offer  is  the  best; 
And,  let  your  father  make  her  the  assurance, 
She  is  your  own ;  else,  you  must  pardon  me, 
If  you  should  die  before  him,  where's  her  dower?" 


1  Glanville's  Book  VI,  113. 

2  Vol.  2.  Patre  49. 


13 

In  Act  i,  Scene  3,  Pericles,  Prince  of  Tyre,  Thaliard 
says: 

"For  if  a  king  bid  a  man  to  be  a  villain,  he's  bound  by  the  in- 
denture of  his  oath  to  be  one." 

•  An  indenture  of  an  oath  is  an  expression  no  lawyer  would 
use.  An  indenture  was  a  writing  pertaining  to  a  bargain  or 
contract  between  two  or  more  parties,  when  the  same  matter 
was  written  twice  or  more  on  the  same  sheet  with  a  space 
between,  and  then  was  cut  in  a  serrated  or  indented  line, 
and  a  part  delivered  to  each  of  the  parties.  In  Shakespeare's 
time  the  actual  indenting  was  necessary  to  constitute  an  in- 
denture, but  an  oath  of  allegiance  never  had  anything  to  do 
with  an  indenture,  or  an  indenture  with  an  oath. 

In  i  Henry  Fourth,  Act  3,  Scene  i,  when  Glendower, 
Hotspur  and  Mortimer  divide  up  the  territory  of  England 
into  three  parts,  Hotspur  says  : 

"Methinks  my  moiety,  north  from  Burton  here, 
In  quantity  equals  not  one  of  yours." 

This  word  "moiety"  is  frequently  used  by  Shakespeare  as 
meaning  some  other  part  than  half,  but  this  is  unlawyerlike, 
because  moiety  means  one  of  two  equal  parts,1  and  not  one- 
third,  as  here  used. 

In  Hamlet,  Act  i,  Scene  2,  the  king  says: 

"Therefore  our  sometime  sister,  now  our  queen, 
The  imperial  jointress  of  this  warlike  state." 

"Jointress"1  is  a  woman  who  has  an  estate  settled  on  her 
by  her  husband,  to  hold  during  her  life  if  she  survive  him, 
and  is  used  as  a  means  for  barring  dower.  The  queen  could 

1  Littleton.  Sec.  291. 

2  Les  Termes  De  La  Ley,  472. 


H 

have  neither  dower  nor  jointure  in  the  kingdom,  and  so  this 
word  is  not  used  in  its  technical  legal  sense,  but  misused. 

In  the  ist  part  of  King  Henry  Sixth,  Act  i,  Scene  3, 
Gloster  says : 

"Peace,  mayor!  thou  know'st  little  of  my  wrongs, 
Here's  Beaufort,  that  regards  nor  God  nor  king, 
Hath  here  distrain'd  the  Tower  to  his  use." 

"Distrain'd"  is  not  the  proper  legal  term  to  use  in  the 
sense  of  taking  possession  of  the  tower,  as  is  evidently  meant 
here.  A  distress  is  "the  act  of  taking  movable  property  out 
of  the  possession  of  a  wrong- doer,  to  compel  the  perform- 
ance of  an  obligation,  or  to  procure  satisfaction  for  a  wrong 
committed,  like  a  distress  for  rent."1  A  lawyer  would  not 
have  used  "distrained"  in  this  sense. 

In  Henry  Fifth,  Act  i,  Scene  i,  Canterbury  says  : 

"For  all  the  temporal  lands  which  men  devout 
By  testament,  have  given  to  the  church 
Would  they  strip  from  us." 

But  men  could  not  then  give  lands  by  a  testament ;  they 
gave  personal  property  by  a  testament,  and  real  estate,  or 
lands,  by  a  will.2 

In  2  King  Henry  Fourth,  Act  5,  Scene  5,  Pistol  says : 

"  'T  is  semper  idem,  for  absque  hoc  nihil  est;  't  is  all  in  every 
part." 

This  is  the  only  use,  or  attempted  use,  of  absque  hoc  by 
Shakespeare  in  any  of  his  works,  and  here  it  is  not  used  in 
any  legal  sense,  or  with  any  sense  at  all. 


1  SBlk.  Com.  6. 

2  IV  Burns  Eccl.  Law,  44. 


One  of  the  oft  cited  passages  from  Shakespeare's  works  to 
show  that  he  was  a  lawyer  is  in  Act  4,  Scene  i,  of  The 
Comedy  of  Errors.  The  goldsmith  owed  the  merchant  a 
large  sum  of  money  for  which  he  had  several  times  been 
importuned,  and  the  merchant  told  the  goldsmith  that  as  he 
was  bound  for  a  voyage  to  Persia  he  wanted  his  guilders  for 
that  voyage,  and  unless  he  made  present  satisfaction  he  would 
attach  him  by  the  officer  he  had  with  him.  It  is  reasonable 
to  suppose  that,  this  obligation  being  long  overdue,  he  had 
already  sued  out  the  original  writ,  and  had  with  him  the 
mesne  process  upon  which  Angelo  could  be  arrested,  but 
the  goldsmith  told  the  merchant  that  he  had  delivered  a  gold 
chain  to  Antipholus,  and  was  to  be  paid  at  five  o'clock,  and 
requested  him  to  go  to  the  house  of  Antipholus  and  receive 
the  money ;  but  the  officer  descried  Antipholus  coming,  and 
said: 

"That  labor  may  you  save;   see  where  he  comes." 

Then  Angelo  demands  of  Antipholus  pay  for  the  chain, 
which  Antipholus  denies  having  received,  and  is  told  by  the 
merchant : 

"My  business  cannot  brook  this  dalliance. 
Good  sir,  say  whether  you'll  answer  me  or  no; 
If  not,  I'll  leave  him  to  the  officer. 

Antipholus.  I  answer  you  !    What  should  I  answer  you? 

Angelo.  The  money  that  you  owe  me  for  the  chain. 

Antipholus.  I  owe  you  none  till  I  receive  the  chain. 

Angelo.  You  know  I  gave  it  you  an  hour  since. 

Antipholus.  You  gave  me  none ;  you  wrong  me  much  to  say  so. 

Angelo.  You  wrong  me  more,  sir,  in  denying  it ! 
Consider  how  it  stands  upon  my  credit. 

Merchant.  Well,  officer,  arrest  him  at  my  suit. 


i6 


Officer.  I  do,  and  charge  you  in  the  Duke's  name  to  obey  me. 

Angelo.  This  touches  me  in  reputation. 

Either  consent  to  pay  this  sum  for  me, 

Or  I  attach  you  by  this  officer. 
Antipholus.     Consent  to  pay  thee  that  I  never  had? 

Arrest  me,  foolish  fellow,  if  thou  dar'est. 
Angelo.  Here  is  thy  fee  ;  arrest  him.  officer. 

I  would  not  spare  my  brother  in  this  case, 

If  he  should  scorn  me  so  apparently. 
Officer.  I  do  arrest  you  ;   you  hear  the  suit. 

Antipholus.      I  do  obey  thee  till  I  give  the  bail ; 

But,  sirrah,  you  shall  buy  this  sport  as  dear 

As  all  the  metal  in  your  shop  shall  answer. 
Angelo.  Sir,  Sir,  I  shall  have  law  in  Ephesus, 

*To  your  notorious  shame ;  I  doubt  it  not." 

So  it  seems  by  this  law  that  Angelo,  by  simply  paying  an 
officer  his  fee  without  any  original  writ,  mesne  process  or 
any  other  paper,  could  have  his  debtor  arrested  on  the  street 
by  simply  saying  to  the  officer,  "Here  is  thy  fee  ;  arrest  him, 
officer."  This  is  not  law,  and  never  was  law,  and  no  lawyer 
would  have  made  such  an  error.  Then  again,  later  on,  in 
Scene  2,  when  Dromio  is  sent  to  Antipholus'  wife  to  get  the 
money  for  his  bail,  he  says  : 

"I  do  not  know  the  matter;  he  is  'rested  on  the  case." 

Now,  this  action,  Angelo  vs.  Antipholus,  if  action  it  can 
be  called  without  any  papers  whatsoever,  must  have  been 
debt  for  the  price  of  the  goods  sold  and  delivered.  An  ac- 
tion on  the  case  for  a  debt,  which  is  called  an  action  in 
assumpsit  today,  would  not  have  been  the  proper  action  in 
Shakespeare's  day.  Actions  on  the  case  then  were  confined 
to  matters  ex  delicto,  or  those  arising  out  of  a  wrong  or  tres- 
pass, and  case  could  not  then  be  predicated  upon  matters 


arising  ex  contractu.  This  play  was  written  abdut  1593, 
and  it  was  first  decided  in  England  that  an  action  on  the 
case,  the  action  we  call  assumpsit,  would  lie  for  a  debt  or  for 
goods  sold  and  delivered,  in  the  forty-fourth  year  of  Eliza- 
beth, in  Slade's  case ; 1  therefore,  this  action  for  causes  aris- 
ing ex  contractu  was  not  known  in  England  until  nine  years 
after  this  play  was  written ;  and  Shakespeare's  legal  train- 
ing, whatever  he  may  have  had,  according  to  all  those  who 
claim  he  studied  law,  must  have  been  before  he  went  to 
London  in  1586 ;  so  that  while  he  was  engaged  in  the  study 
of  law  or  while  he  was  in  an  attorney's  office,  the  action  of 
case  founded  on  an  assumpsit  or  promise  was  absolutely  un- 
known ;  and  this  quotation  is  an  unfortunate  one  as  tending 
to  show  any  technical  knowledge  of  legal  procedure  in 
Shakespeare,  as  there  was  no  such  law  at  the  time  he  wrote 
the  play,  and  no  such  practice  at  the  time  he  studied  law,  if 
he  ever  did. 

Dromio's  description  of  the  officer  who  arrested  his  master 
has  been  cited  by  some  of  the  advocates  of  Shakespeare's 
lawyership  as  tending  to  show  that  he  knew  more  about  the 
law  than  a  layman,  and  no  one  can  deny  that  he  very  well 
describes  the  common  feeling  of  debtors  when  arrested  for 
debt.  Adriana  asks,  "Where  is  thy  master,  Dromio?  Is  he 
well  ?"  Dromio  replies  : 

"No,  he's  in  Tartar  limbo,  worse  than  hell; 

A  devil  in  an  everlasting  garment  hath  him, 

One  whose  hard  heart  is  button'd  up  with  steel ; 

A  fiend,  a  fairy,  pitiless  and  rough ; 

A  wolf ;  nay  worse,  a  fellow  all  in  buff ; 

A  back-friend,  a  shoulder-clapper,  one  that  countermands 

1    4  Rep.  93. 


i8 

The  passages  and  alleys,  creeks,  and  narrow  lands : 

A  hound  that  runs  counter,  and  yet  draws  dry-foot  well ; 

One  that  before  the  judgment  carries  poor  souls  to  hell." 

Because  he  has  here  described  the  dress  of  a  sheriff's 
officer  "a  fellow  all  in  buff,"  and  because  he  has  also  said 
"one  that  before  the  judgment  carries  poor  souls  to  hell,** 
indicating  that  this  was  imprisonment  on  mesne  process,  and 
not  on  final  execution,  it  has  been  reasoned  that  he  must 
have  been  a  lawyer  ;l  but  any  ordinary  man  of  affairs  about 
London,  as  Shakespeare  was,  must  have  seen  sheriff's 
officers  arrest  debtors.  His  father,  before  Shakespeare  left 
Stratford,  dared  not  go  to  church  for  fear  of  being  arrested 
for  debt.  His  father  for  many  years  was  the  Chief  Magis- 
trate of  Stratford,  and  there  must  have  been  debtors  arrested 
and  conveyed  to  jail  before  judgment  in  Stratford.  It  was 
common  knowledge,  not  confined  to  lawyers,  that  debtors 
could  be  arrested  before  final  judgment,  and  confined  in  jail 
unless  bail  was  furnished.  These  citations  do  not  show  any 
more  special  technical  knowledge  in  Shakespeare  than  any 
ordinary  person  might  be  expected  to  have,  living  under  the 
law  as  it  then  was. 

The  description  of  the  trial  of  the  Duke  of  Buckingham 
given  in  Henry  Eighth,  Act  2,  Scene  i,  has  been  referred 
to  often  from  the  fact  that  it  is  related  in  correct  professional 

language  : 

"The  great  duke 

Came  to  the  bar,  where  to  his  accusations 
He  pleaded  still  not  guilty,  and  alleg'd 
Many  sharp  reasons  to  defeat  the  law. 
The  king's  attorney,  on  the  contrary, 
Urg'd  on  the  examinations,  proofs,  confessions 


1    Campbell's  Shakespeare's  Legal  Acquirer 


'9 

Of  divers  witnesses,  which  the  duke  desir*d 
To  have  brought  viva  voce  to  his  face." 

I  must  admit  that  what  Shakespeare  says  here  indicates 
familiarity  with  and  knowledge  of  legal  procedure  and  tech- 
nical legal  terms,  but  upon  examination  I  find  that  all  the 
legal  phraseology  contained  therein,  almost  word  for  word, 
is  taken  from  Hall's  Chronicles,1  and  Shakespeare  only  used 
what  he  found  there,  as  he  did  in  many  other  instances, 
transposing  the  words  a  little,  and  making  use  of  the  facts, 
and  using  the  legal  terms  which  Hall  had  given  in  his 
Chronicles ;  so  that  if  this  proves  that  anyone  was  a  lawyer, 
it  was  Hall  and  not  Shakespeare.  Rolfe  says  in  his  intro- 
duction to  this  play  that  Shakespeare  turned  the  details  from 
these  Chronicles  and  other  writers  into  dramatic  form  with 
very  slight  change  of  language.2 

It  is  also  true  that  in  almost  all  his  historical  plays 
Shakespeare  simply  copies  the  legal  language  found  in  the 
works  from  which  he  takes  his  material ;  Hall  and  Holm- 
shed  are  the  sources  from  which  come  the  legal  phraseology 
contained  in  those  plays.  That  he  used  these  terms  many 
times  appropriately  there  can  be  no  question,  but  it  is  unfair 
to  judge  Shakespeare  like  an  ordinary  person.  Faculties 
like  his  could  "rifle  sweets  from  every  source ;"  and  that  he 
did  derive  material  and  gain  instruction  from  all  quarters  is 
unquestionable.  It  would  be  as  hard  to  say  where  such  a 
writer  as  Shakespeare  got  his  knowledge  as  where  a  bee 
gets  its  honey. 

In  Act  3,  Scene  2,  of  Henry  Eighth,  is  the  famous  inter- 
view between  Suffolk  and  Wolsey,  where  Suffolk  says : 
"Lord  Cardinal,  the  king's  further  pleasure  is — 

1  Hall's  Chronicles,  623-24. 

2  Rolfe's  King  Henry  Ei»ht,  15. 


20 


Because  of  all  those  things  you  have  done  of  late 

By  your  power  legatine  within  this  kingdom, 

Fall  into  the  compass  of  a  praemunire — 

That  therefore  such  a  writ  be  sued  against  you ; 

To  forfeit  all  your  goods,  lands,  tenements, 

Chattels,  and  whatsoever,  and  to  be 

Out  of  the  king's  protection.     This  is  my  charge." 

Judge  Holmes,  Senator  Davis  and  others  have  founded 
their  argument  that  Shakespeare  was  a  lawyer  partly  upon 
this  passage,  and  to  illustrate  how  slight  a  basis  this  offers, 
I  will  cite  from  Holinshed,  741-743  : 

"In  the  meantime  the  king,  being  informed  that  all  those 
things  the  cardinal  had  done  by  his  power  legatine  within 
this  realm  were  in  the  case  of  the  praemunire  and  its  provis- 
ion, caused  his  attorney,  Christopher  Hales,  to  sue  out  a 
writ  of  praemunire  against  him,  in  the  which  he  licensed  him 
to  make  his  attorney.  And,  furthermore,  the  seventeenth 
of  November  the  king  sent  the  two  dukes  of  Norfolk  and 
Suffolk  to  the  cardinal  at  Westminster,  who  went  as  they 
were  commanded,  and  finding  the  cardinal  there  they  de- 
clared that  the  king's  pleasure  was  that  he  should  surrender 
up  the  great  seal  into  their  hands,  and  to  depart  simply  unto 
Asher.  *  *  *  *  After  this,  in  the  king's  bench,  his  matter 
for  the  praemunire  being  called  upon,  two  attorneys,  which 
he  had  authorized  by  his  warrant  signed  with  his  own  hand, 
confessed  the  action,  and  so  had  judgment  to  forfeit  all  his 
lands,  tenements,  goods  and  cattels,  and  to  be  out  of  the 
king's  protection." 

The  only  difference  between  Shakespeare  and  Holinshed 
in  the  description  of  this  writ  is  Holinshed  says  "case  of  the 
praemunire,"  and  Shakespeare  "compass  of  a  praemunire;" 
and  also  Holinshed  uses  the  word  "cattels"  and  Shakes- 


21 

peare  "chattels,"  but  in  Shakespeare's  time  the  words 
"cattels"  and  "chattels"  were  used  synonymously,  and  in  the 
folio  edition  of  Shakespeare  "castles"  is  used  in  place  of 
"chattels."  Evidently  this  is  a  mistake,  as  "chattels"  was 
probably  the  word,  yet  Senator  Davis1  says  that  Shakes- 
peare was  correct  in  the  language  he  puts  in  the  cardinal's 
mouth,  and  says  "It  will  be  observed  how  accurate  was 
Shakespeare's  understanding,  not  only  of  its  consequences, 
but  of  the  legal  formalities  necessary  to  enforce  them." 

In  King  Richard  Second,  Act  2,  Scene  3,  Bolingbroke 
complains  to  Richard : 

"I  am  denied  to  sue  my  livery  here, 
And  yet  my  letters  patents  give  me  leave." 
"I  am  a  subject, 

And  challenge  law ;  attorneys  are  denied  me ; 
And  therefore  personally  I  lay  my  claim 
To  my  inheritance  of  free  descent." 

This  comes  from  Holinshed,  every  legal  term  being 
found  there  used  as  Shakespeare  used  it,  even  the  double 
plural  "letters  patents,"  and  in  all  the  historical  plays  the 
idea,  the  legal  situation,  and  the  technical  legal  words  are 
taken  bodily,  often  literally,  from  Holinshed  and  Hall. 

It  is  astonishing  what  recklessness  has  been  shown  by 
several  of  the  legal  advocates  of  Shakespeare's  lawyership 
in  founding  their  arguments  upon  expositions  of  law  which 
are  correctly  given  in  Shakespeare  without  investigating  the 
sources  from  which  he  drew,  not  only  the  legal  subject,  but 
the  technical  words  and  phrases  used.  To  show  this  clear- 
ly, I  will  cite  what  Canterbury  says  in  Henry  Fifth,  Act  i, 
Scene  2,  and  parallel  it  with  the  same  subject  from  Holin- 


1    The  Law  of  Shakespeare,  No  186,  Pajre  220. 


22 


shed,  and  show  that  Shakespeare  not  only  got  the  material 
from  which  he  frames  Canterbury's  exposition  of  the  Salique 
law,  but  the  very  words,  from  Holinshed.  Every  detail 
given  in  this  scene  is  taken  from  that  writer.  Even  the 
Levitical  law,  when  Canterbury  says, 

"For  in  the  book  of  Numbers  is  it  writ, 
When  the  man  dies,  let  the  inheritance 
Descend  unto  the  daughter," 

is  taken  from  Holinshed,  who  says,  "The  archbishop  fur- 
ther alledged  out  of  the  booke  of  Numbers  this  saieing : 
'When  a  man  dieth  without  a  sonne,  let  the  inheritance  de- 
scend to  his  daughter.'" 

Shakespeare  also  makes  Canterbury  say  in  this  scene : 


"There  is  no  bar 
To  make  against  your  highness'  claim  to 

France 

But  this,  which  they  produce  from  Phara- 
mond— 
'In   terram   Salicam  muliures    ne    succe- 

dant;' 

'No  woman  shall  succeed  in  Salique  land:' 
Which  Salique  land  the  French  unjustly 

gloze 
To  be  the  realm  of  France,  and  Phara- 

moud 

The  founder  of  this  law  and  female  bar. 
Yet  their  own  authors  faithfully  affirm 
That  the  land  Salique  is  in  Germany, 
Between  the  floods  of  Sala  and  of  Elbe; 
Where  Charles  the  Great,  having-  subdued 

the  Saxons, 
Who,   holding   in   disdain    the    German 

women 

For  some  dishonest  manners  of  their  life, 
Establish'd  then  this  law;   to  wit,  no  fe- 
male 

Should  be  inheritrix  in  Salique  land; 
Which  Salique,  as  I  said,  'twixt  Elbe  and 

Sala, 

Is  at  this  day  in  Germany  call'd  Meisen. 
Then  doth  it  well  appear  the  Salique  law 
Was  not  devised  for  the  realm  of  France: 
Nor  did  the  French  possess  the   Salique 

land 

Until  four  hundred  one  and  twenty  years 
After  defunction  of  King-  Pharamond, 
Idly  suppos'd  the  founder  of  this  law. 
Who  died  within  the  year  of  our  redemp- 
tion 

Four  hundred  twenty-six;  and  Charles  the 
Great 


Holinshed    thu 
argument: 


details    Canterbury's 


surmised  and  false  fained  law  Salike 
which  the  Frenchmen  alledg-e  over 
against  the  kings  of  England  in  barre  of 
their  just  title  to  the  crowns  ot  France- 
The  verie  words  of  that  supposed  law  are 
these.  In  terram  Salicam  mulieres  ne  sec- 
cedant,  that  is  to  sale,  into  the  Salike 
land  let  not  women  succeed.  Which  the 
French  glossers  expound  to  be  the  realnie 
of  France,  and  that  this  law  was  made  by 
King  Pharamond;  whereas  yet  their  owne 
authors  affirme  that  the  land  Salike  is  in 
Germanic  between  the  rivers  of  Elbe  and 
Sala;  and  that  when  Charles  the  Great 
had  overcome  the  Saxons,  he  placed  there 
certaine  Frenchmen,  which  having  in  dis- 
deine  the  dishonest  manners  of  the  Ger- 
mane women,  made  a  law,  that  the  females 
should  not  succeed  to  any  inheritance 
within  that  land,  which  at  this  daie  is 
called  Meisen,  so  that,  if  this  be  true,  this 
law  was  not  made  for  the  realme  of 
France,  nor  the  Frenchmen  possessed  the 
land  Salike,  till  foure  hundred  and  one 
and  twentie  years  after  the  death  of  Phar- 
amond, the  supposed  maker  of  this  Salike 
law,  for  this  Pharamond  deceased  in  the 
yeare  425,  and  Charles  the  Great  subdued 
the  Saxons,  and  placed  the  Frenchmen  in 
those  parts  beyond  the  river  Sala.  in  the 
yeare  805. 

''Moreover,  it  appeareth  by  their  owne 
writers  that  King  Pepine,  which  deposed 
Childerike.  claimed  the  crowne  of  France? 
as  heire  generall.  for  that  he  was  descend- 


Numbers  27-8, 


Subdued   the  Saxons,  and    did    beat    the 

French 

Beyond  the  river  Sala,  in  the  year 
Eight  hundred  five.    Besides,  their  writ- 
ers say, 

King-  Pepin,  which  deposed  Childeric, 
Did,  as  heir  general,  being  descended 
Of  Blithild.  which  was  daughter  to  King: 

Clothair, 
Make  claim    and    title    to    the   crown  of 

France. 

Hugh  Capet— who  usnrp'd  the  crown 
Of  Charles  the  duke  of  Lorraine,  sole  heir 

male 
Of  the  true  line  and  stock  of  Charles  the 

Great — 

To  find  his  title  with  some  shows  of  truth. 
Though,  in  pure  truth,  it  was  corrupt  and 

nang-ht, 
Convey'd  himself  as  heir  to  the  Lady  Lin- 

gare. 

Daughter  to  Charlemain.  who  was  the  son 
To  Lewes  the  emperor,  and  Lewes  the  son 
Of  Charles  the  Great.  Also  King  Lewes 

the  Tenth, 

Who  was  sole  heir  to  the  usurper  Capet, 
Could  not  keep  quiet  in  his  conscience 
Wearing  the  crown  of  France,  till  satisfied 
That  fair  Queen  Isabel,  his  grandmother, 
Was  lineal  of  the  Lady  Ermengare, 
Daughter  to  Charles  the  foresaid  duke  of 

Lorraine: 
By  the  which  marriage  the  line  of  Charles 

the  Great 

Was  re-united  "to  the  crown  of  France. 
So  that,  as  clear  as  is  the  summer's  sun. 
King  Pepin's  title  and  Hugh  Capet's  claim. 
King  Lewes  his  satisfaction,  all  appear 
To  hold  in  right  and  title  of  the  female. 
So  do  the  kings  of  France  unto  this  day: 
Howbeit  they  would  hold  up  this  Salique 

law 
To  bar  your  highness  claiming  from  the 

female. 

And  rather  choose  to  hide  them  in  a  net 
Than  amply  to  imbare  their  crooked  titles 
Usurp'd  from  yon  and  your  progenitors. 


ed  of  Blithild.  daughter  to  King  Clothair 
the  first:  Hugh  Capet  also,  who  usurped 
the  crowne  upon  Charles,  Duke  of  Lor- 
raine, the  sole  heire  male  of  the  line  and 
stocke  of  Charles  the  Great,  to  make  his 
title  seeme  true,  and  appeare  good,  though 
in  deed  it  was  starke  naught,  conveied 
himselfe  as  heirs  to  the  ladie  Lingard, 
daughter  to  King  Charlemaine  sonne  to 
Lewes  the  emperonr.  that  was  son  to 
Charles  the  Great.  King  Lewes  also  the 
tenth,  otherwise  called  Saint  Lewes,  being 
verie  heir  to  the  said  usurper  Hugh  Capet, 
could  never  be  satisfied  in  his  conscience 
how  he  might  jnstlie  keepe  and  possesse 
the  crowne  of  France,  till  he  was  persuad- 
ed and  f  ullie  instructed  that  Queen  Isabel 
his  grandmother  was  lineallie  descended 
of  the  ladie  Ermengard,  daughter  and 
heire  to  the  above  named  Charles,  duke  of 
Lorraine,  by  the  which  marriage,  the 
blond  and  line  of  Charles  the  Great  was 
againe  united  and  restored  to  the  crowne 
and  scepter  of  France,  so  that  more  cleeare 
than  the  sun  it  openlie  appeareth  that  the 
title  of  King  Pepin,  the  claim  of  Hugh 
Capet,  the  possession  of  Lewes,  yea  and 
the  French  kings  to  this  daie,  are  derived 
and  conveied  from  the  heire  female, 
though  they  would  under  the  colour  of 
such  fained  law,  barre  the  kings  and 
princes  of  this  realme  of  England  of  their 
right  and  lawful  inheritance." 


To  prove  that  Shakespeare  copied  this  from  Holinshed,  it 
may  be  noted  that  both  Holinshed  and  Shakespeare  put  the 
time  at  421  years,  although  both  of  them  fix  the  dates  from 
which  they  reckon  thus :  That  King  Pharamond  died  in 
426  and  Charles  the  Great  subdued  the  Saxon  in  805,  which 
makes  but  379  years  instead  of  421.  The  error  comes  in 
subtracting  the  5  in  the  805  from  the  26  in  the  426,  and  then 
the  400  from  the  800.  And  they  both  called  St.  Lewes, 
King  Lewes  the  Tenth  but  in  fact  he  was  King  Lewes  the 
Ninth.  Now  the  repetition  of  two  such  glaring  errors 
shows  beyond  question  that  this  passage  was  copied. 


24 

Senator  Davis  in  commenting  on  this  exposition  of  the 
law  Salic  says,  "The  arguments  of  the  Ar£h'bishop  that  this 
law  was  not  designed  for  France,  is,  in  its  order,  reason  and 
arrangements,  thoroughly  forensic  and  compact."1 

Had  Senator  Davis  ascertained  who  was  the  author  of 
this  forensic  exposition  by  the  Archbishop,  he  would  have 
discovered  that  the  quoted  passages  prove  Holinshed  rather 
than  Shakespeare  to  be  the  lawyer. 

In  Love's  Labour  Lost,  in  the  conversation  between  Maria 
and  Boyet,  Boyet  says  : 

"No  sheep,  sweet  lamb,  unless  we  feed  on  your  lips. 
Maria.  You  feed  and  I  pasture  ;  shall  that  finish  the  jest  ? 

Boyet.  So  you  grant  pasture  for  me.   (Offering  to  kiss  her.) 

Maria.  Not  so,  gentle  beast. 

My  lips  are  not  common,  though  several  they  be." 

In  2  King  Henry  Sixth,  Act  i,  Scene  3,  Suffolk  says  : 

"What's  here?     (Reads)  'Gainst  the 
Duke  of  Suffolk  for  enclosing  the  commons  of  Mel- 
ford; 

How  now,  sir  knave  ? 
Petitioner.      Alas,  sir,  I  am  but  a  poor  petitioner  of   our  whole 

township." 

It  seems  from  the  biographies  of  Shakespeare  that  he  him- 
self had  considerable  to  do  with  commons.  Some  of  the 
local  proprietors  of  Welcombe  and  Old  Stratford  proposed 
to  enclose  certain  common  pasture  lands  there,  to  which 
Shakespeare  objected,  and  the  corporation  of  Stratford  also 
strongly  objected,  and  sent  their  clerk,  Mr.  Thomas  Green, 
to  London  about  that  business  ;  and  Shakespeare  saw  the 
agent  of  the  proprietors  and  went  carefully  into  the  details 
of  their  plan,  and  later  pronounced  strongly  against  the 


1    The  Law  in  Shakespeare,  No.  144.  Paee  184. 


25 

whole  affair,  and  told  the  agent  of  the  corporation  that  he 
"was  not  able  to  bear  the  enclosing  of  Welcombe  Common." 
This  subject  must  have  been  agitated  a  long  time  prior  to 
this,  and  Shakespeare  took  such  an  interest  in  it  that  he  un- 
doubtedly consulted  lawyers  regarding  it ;  so  that  what  was 
common  and  what  was  several  was  known  to  him  from  ex- 
perience, and  it  must  be  remembered  that  his  boyhood  life 
was  spent  in  the  vicinity  of  these  Commons. 

The  feudal  system  of  England  left  certain  lands  in  every 
community  to  be  used  in  common  by  the  peasantry,  and  the 
rights  of  the  Lord  of  the  Manor  and  of  the  Tenants  to 
these  Commons  was  a  matter  of  common  knowledge  and 
frequent  disputes,  and  therefore  the  fact  that  Shakespeare 
knew  of  these  rights  in  common  and  of  pasturage  upon  this 
common  land  is  no  argument  to  show  that  he  had  a  legal 
training. 

In  Troilus  and  Cressida,  Pandarus,  seeking  to  encourage 
Troilus  and  Cressida  regarding  their  love,  says : 

"Troilus,  so  rub  on  and  kiss  the  mistress, 
How  now,  a  kiss  in  fee  farm  ?" 

The  definition  for  "fee  farm"  in  the  Law  Dictionary  of 
Shakespeare's  time — Les  Termes  de  la  Ley — is,  "Fee  farm 
is  when  a  tenant  holds  of  his  lord  in  fee  simple,  paying  to 
him  the  value  of  half  of  the  third,  fourth,  or  other  part  of 
the  land  by  the  year."  * 

Then  what  relation  can  this  definition  of  fee  farm  have  to 
a  kiss?  In  Shakespeare's  time  fee  farm  was  a  very  common 
expression,  for  there  was  a  great  deal  of  land  in  England 
held  in  fee  farm,  and  Shakespeare  must  have  known  of 
the  term  and  its  meaning,  but  that  any  lawyer  ship  is  shown 


26 

in  applying  it  to  a  kiss  is  beyond  comprehension.  If  it  has 
any  legal  significance  whatever,  it  must  mean  a  kiss  in  per- 
petuity, or  forever,  then  it  would  read  : 

"How,  now,  a  kiss  forever." 

This  would  be  rather  a  long  kiss,  or  in  other  words,  too 
much  of  a  good  thing. 

Lord  Campbell  cites,1  as  showing  Shakespeare's  special 
knowledge  of  the  law  of  real  estate,  which  knowledge  he 
says  is  not  generally  possessed,  Merrie  Wives  of  Windsor, 
Act  2,  Scene  2,  where  Falstaff  asks  Ford : 

"Of  what  quality  was  your  love,  then? 
Ford.      Like  a  fair  house  built  on  another  man's  ground ; 

So  that  I  have  lost  my  edifice  by  mistaking  the  place 

I  erected  it." 

And  one  writer  on  this  subject  says  that,  "Although  the 
principle  is  one  of  great  antiquity,  it  is  so  far  technical  that 
it  is  not  familiar  to  unprofessional  persons;"2  and  cites,  as 
an  authority  sustaining  this  view,  the  case  of  the  First  Par- 
ish in  Sudbury  vs.  Jones,3  as  being  a  case  where  the  town 
of  Sudbury  lost  a  schoolhouse  by  mistaking  the  ownership 
of  the  land  where  they  erected  it.  Upon  examination  of 
this  case,  it  will  be  found  that  that  question  was  not  in  issue  ; 
the  question  was  whether  the  First  Parish  in  Sudbury  owned 
the  land  upon  which  the  schoolhouse  was  built,  for  parochial 
purposes,  or  whether  it  was  owned  by  the  Town  of  Sudbury 
for  general  public  purposes,  and  the  Court  held  that  it  be- 
longed to  the  First  Parish,  and  that  it  had  impressed  upon  it 
in  the  grant  a  parochial  character.  The  argument  in  the  case 


1  Shakespeare's  Lecral  Acquirements,  39. 

2  26  Law  Reporter,  2. 

3  8  Gush.  184. 


27 

was  all  confined  to  that  question.  It  is  a  matter  of  common 
knowledge,  and  had  been  long  before  Shakespeare's  time,  that 
he  who  built  upon  another  man's  land  was  a  trespasser,  and 
forfeited  whatever  structure  he  placed  thereon  without  license, 
and  it  needed  no  legal  training  for  a  man  of  Shakespeare's 
ability  to  have  found  out  by  common  observation  that  "A  fair 
house  built  on  another  man's  ground"  could  not  be  enjoyed 
by  the  party  constructing  it. 

In  All's  Well  that  Ends  Well,  Act  4,  Scene  3,  Parolles, 
when  prisoner  undergoing  the  examination  by  his  captor, 
said  in  regard  to  Captain  Dumain  : 

"Sir,  for  a  quart  d'ecu  he  will  sell  the  fee-simple  of  his  salva- 
tion, the  inheritance  of  it,  and  cut  the  entail  from  all  remainders, 
and  a  perpetual  succession  for  it  perpetually." 

This  is  legal  phraseology  with  a  vengeance,  and  in  solv- 
ing what  Shakespeare  means  here  one  writer  has  said  that  a 
knowledge  of   law  and  law  terms  would  be  more  of   a  hin-/ 
drance  than  a  help. 

In  Sonnet  46  is  a  description  by  the  poet  of  a  trial  by  jury 
between  the  heart  and  eye  regarding  the  title  to  a  fair  lady  : 

"My  heart  doth  plead  that  thou  in  him  dost  lie 

(A  closet  never  pierced  with  crystal  eyes,) 

But  the  defendant  doth  that  plea  deny, 

And  says  in  him  thy  fair  appearance  lies. 

To  'cite  this  title  is  impannelled 

A  quest  of  thoughts,  all  tenants  to  the  heart ; 

And  by  their  verdict  is  determined 

The  clear  eye's  moiety,  and  the  dear  heart's  part ; 

As  thus :  mine  eye's  due  is  thine  outward  part, 

And  my  heart's  right,  thine  inward  love  of  heart." 

Lord  Campbell  says  that  this  description  of   a  lawsuit  is 


28 

intensely  legal  in  its  language,1  and  that  the  poet  could  not 
be  understood  without  a  considerable  knowledge  of  English 
forensic  procedure,  and  that  this  sonnet  smells  as  potently 
of  the  attorney's  office  as  any  of  the  stanzas  penned  by  Lord 
Kenyon  while  an  attorney's  clerk  in  Wales.  But  this  is  less 
accurate  than  the  description  of  the  suit  between  the  nose 
and  eye  given  by  Cowper.  In  this  sonnet  the  plaintiff's  dec- 
laration is  called  a  plea.  The  cause  is  represented  as  a  real 
action  to  try  title.  The  plaintiff  is  not  complaining  of  a 
disseisin,  but  insists  in  his  declaration  ("plea,"  as  Shakes- 
peare calls  it)  that  he  already  has  what  he  sued  for,  while 
the  defendant  ("eye")  claims  title  in  himself,  and  also  pos- 
session. But  would  a  lawyer,  even  in  poetry,  suggest  that 
the  jury,  to  decide  title  to  property,  should  be  drawn  from 
the  tenants  of  the  plaintiff  ? 

"A  quest  of  thoughts,  all  tenants  to  the  heart." 

This  is  an  inaccuracy  of  expression,  for  in  all  real  estate 
actions,  the  term  tenant  was  the  denomination  of  the  defend- 
ant, and  these  tenants  derived  their  title  from,  and  were 
parties  in  interest  with ,  the  plaintiff.  This  would  be  a  travesty 
on  justice,  and  the  verdict  is,  like  some  verdicts  of  justice 
juries,  not  relevant  to  the  question  in  issue,  for  practically  it 
makes  partition  of  the  lady  the  subject  of  dispute.  Does  the 
use  of  technical  legal  phraseology  so  misapplied  do  any- 
thing but  disprove  that  Shakespeare  was  a  lawyer? 

Lord  Campbell  cites  twelve  passages  from  the  Sonnets 
in  which  he  says  Shakespeare  has  used  legal  language  cor- 
rectly. One  of  them  is  : 

"And  summer's  lease  hath  all  too  short  a  date." 


1    Shakespeare's  Legal  Acquirements,  126. 


29 

The  date  of  a  lease  is  its  beginning,  and  using  this  in  its 
technical  legal  sense  makes  nonsense  of  the  passage. 

I  give  all  the  other  citations  from  the  Sonnets  made 
by  Lord  Campbell : 

"When  to  the  sessions  of  sweet  silent  thought 

I  summon  up  remembrance  of  things  past." 

"So  should  that  beauty  which  you  hold  in  lease." 

"And  'gainst  thyself  a  lawful  plea  commence." 

"But  be  contented  ;   when  that  fell  arrest 

Without  all  bail  shall  carry  me  away." 

"Of  faults  concealed,  wherein  I  am  attainted." 

"Which  works  on  leases  of  short  numbered  hours." 

"Lord  of  my  love,  to  whom  in  vassalage 

Thy  merit  hath  my  duty  strongly  knit, 

To  thee  I  send  this  written  embassage." 

"And  I  myself  am  mortgag'd." 

"Why  so  large  cost,  having  so  short  a  lease?" 

"So  should  that  beauty  which  you  hold  in  lease, 

Find  no  determination." 

It  required  no  legal  knowledge  to  understand  what  session 
meant,  or  summon,  lease,  arrest,  bail,  attainted,  or,  in 
Shakespeare's  day,  vassalage.  Certainly  he  had,  through 
his  father,  a  large  experience  with  mortgaged  property,  and 
these  are  all  the  words  found  in  the  citations  from  the  Son- 
nets that  have  any  legal  significance. 

In  Merrie  Wives  of  Windsor,  Act  4,  Scene  2,  Mrs.  Page 
says  : 

"The  spirit  of  wantonness  is,  sure,  scared  out  of  him;  if  the 
devil  have  him  not  in  fee-simple,  with  fine  and  recovery,  he  will 
never,  I  think,  in  the  way  of  waste,  attempt  us  again." 


v 


I 


30 

And  Hamlet's  speech  over  the  skull  of  a  lawyer  in 
Hamlet,  Act  5,  Scene  i : 

" Where  be  his  quiddets  now,  his  quillets,  his  cases,  his  tenures, 
and  his  tricks  ?  Why  does  he  suffer  this  rude  knave  now  to  knock 
him  about  the  sconce  with  a  dirty  shovel,  and  will  not  tell  him  of 
his  action  of  battery  ?  Hum  !  This  fellow  might  be  in  *s  time  a 
great  buyer  of  land,  with  his  statutes,  his  recognizances,  his  fines, 
his  double  vouchers,  his  recoveries ;  is  this  the  fine  of  his  fines, 
and  the  recovery  of  his  recoveries,  to  have  his  fine  pate  full  of  fine 
dirt?  Will  his  vouchers  vouch  him  no  more  of  his  purchases,  and 
double  ones  too,  than  the  length  and  breadth  of  a  pair  of  inden- 
tures?" 

is  cited  by  many  authors  to  show  Shakespeare's  knowledge 
of  the  law ;  but,  so  far  as  fine  and  recovery  are  concerned, 
and  title  in  fee-simple,  it  would  seem  that  Shakespeare's  own 
experience  would  have  been  sufficient.  A  fine  was  levied 
in  1575  when  his  father  bought  property  in  Stratford ;  in 
1579,  when  he  mortgaged  his  wife's  estate ;  in  1597,  when 
Shakespeare  bought  New  Place;  in  1602,  to  cure  a  defect 
in  the  title  to  New  Place  ;  and  in  1610,  when  Shakespeare 
bought  an  estate  of  the  Combes.  He  sealed  and  delivered 
an  indenture  in  1602  for  his  brother  Gilbert ;  and  all  these 
legal  terms  and  phrases  found  in  the  above  citations  were 
commonly  used  by  all  writers  contemporaneous  with 
Shakespeare,  by  those  who  had  and  those  who  had  not  a 
technical  knowledge  of  the  law. 

As  an  illustration  of  the  use  of  technical  terms  by  the  con- 
temporaneous writers  of  Shakespeare,  I  cite  from  Act  4, 
Scene  i,  of  All  Fools,  by  George  Chapman,  published  in 
1605  : 

"I  think  it  would  be  something  tedious  to   read  all,  and  there- 


fore,  gentlemen,  the  sum  is  this :  That  you,  Signer  Comelio,  for 
divers  and  sundry  weighty  and  mature  considerations  you  espec- 
ially moving,  specifying  all  the  particulars  of  your  wife's  enormi- 
ties in  a  schedule  hereunto  annexed,  the  transcript  whereof  is  in 
your  tenure,  custody,  occupation  and  keeping  ;  that  for  these  the 
aforesaid  premises,  I  say,  you  renounce,  disclaim  and  discharge 
Gazetta  from  being  your  leeful  or  your  lawful  wife ;  and  that  you 
eftsoons,  divide,  disjoin,  separate,  remove,  and  finally  eloigne,  se- 
quester and  divorce  her  from  your  bed  and  your  board ;  that  you 
forbid  her  all  access,  repair,  egress  or  regress  to  your  person  or 
persons,  mansion  or  mansions,  dwellings,  habitations,  remain- 
ences,  or  abodes,  or  to  any  shop,  cellar,  sollar,  easements,  cham- 
ber, dormer,  and  so  forth,  not  in  the  tenure,  custody,  occupation 
or  keeping  of  the  said  Cornelio ;  notwithstanding  all  former  con- 
tracts, covenants,  bargains,  conditions,  agreements,  compacts, 
promises,  vows,  affiances,  assurances,  bonds,  bills,  indentures, 
poll-deeds,  deeds  of  gift,  defeasances,  feoffments,  endowments, 
vouchers,  double  vouchers,  privy  entries,  actions,  declarations, 
explications,  rejoinders,  surrejoinders,  rights,  interests,  demands, 
claims,  or  titles  whatsoever,  heretofore  betwixt  the  one  and  the 
other  party  or  parties  being  had,  made,  passed,  covenanted  and 
agreed,  from  the  beginning  of  the  world  to  the  day  of  the  date 
hereof.  Given  the  seventeenth  of  November,  fifteen  hundred  and 
so  forth.  Here,  sir,  you  must  set  your  hand." 

George  Chapman  was  born  in  1559,  and  died  in  1634, 
was  a  poet  and  play-writer,  and  so  far  as  anything  is  shown 
by  his  biography,  never  was  connected  with  the  legal  pro- 
fession. If  the  string  of  legal  terms  given  in  the  above  cita- 
tion from  Hamlet  shows  that  it  was  the  work  of  a  lawyer, 
then  this  from  Chapman  must  have  been  written  by  a  past 
master  in  legal  technicalities  who  could  confound  even 
Lord  Coke  himself. 

In  Act  2,  Scene  i,  of  As  You  Like  It,  Jaques  in  address- 


32 

ing  the  poor  wounded  deer,  dropping  his  tears  in  the  stream, 
says : 

"  'Poor  deer,'  quoth  he,  'thou  mak'st  a  testament 

As  worldlings  do 

Giving  thy  some  of  more 

To  that  which  hath  too  much.' " 

"  'Ay,'  quoth  Jaques, 

'Sweep  on,  you  fat  and  greasy  citizens ; 

'T  is  just  the  fashion ;  wherefore  do  you  look 

Upon  that  poor  and  broken  bankrupt  there  ?' " 

It  seems  that  here  in  the  use  of  the  word  testament  is 
shown  great  technical  knowledge.  This  needs  no  comment, 
t  for  any  man  of  affairs  could  have  used  this  word  as 
well  as  Shakespeare,  and  any  business  man  would  know 
that  worldlings  are  more  apt  to  give  their  property  to  those 
who  have  more  than  they  need  than  to  those  who  need  it. 

A  few  dates  will  show  Shakespeare's  acquaintance  with 
the  word  bankrupt  as  used  here.  His  own  father  had  be- 
come bankrupt  at  Stratford ;  in  1579  he  had  been  warned 
and  ceased  to  attend  the  market ;  in  1586  he  lost  his  position 
as  alderman  ;  in  1592  it  is  stated  that  he  "comme  not  to 
churche  for  feare  of  a  process  for  debt."  So  that  Shakes- 
peare had  a  special  familiarity  with  what  constituted  bank- 
rupts, and  the  way  they  were  looked  upon  by  "fat  and 
greasy  citizens." 

Shakespeare  gets  the  "Crowner's  quest  law"  which  he 
uses  in  the  argument  between  the  two  clowns  in  the  grave 
diggers'  scene  in  Hamlet,  from  a  case  reported  in  Plowden, 
•  Hales  v.  Petit.  This  case,  by  reason  of  the  fine  spun  theo- 
ries of  the  lawyers,  and  the  distinction  without  differences 
drawn  by  the  Court  in  its  opinion,  created  a  great  deal  ot 


33 

discussion  in  Shakespeare's  day,  and  was  the  subject  of 
considerable  ridicule.  This  must  have  come  to  Shakes- 
peare's attention,  as  it  is  evident  his  attention  covered  all 
matters  of  public  interest. 

The  passage  from  The  Taming  of  the  Shrew,  Induction 
Scene  2,  where  the  servant  says  to  Sly  : 

"Yet  would  you  say  ye  were  beaten  out  of  door, 
And  rail  upon  the  hostess  of  the  house, 
And  say  you  would  present  her  at  the  leet, 
Because  she  brought  stone  jugs  and  no  seal'd  quarts," 

has  been  cited  by  Lord  Campbell l  to  show  Shakespeare's 
intimate  knowledge  of  such  matters.  Now,  it  seems  to  me, 
from  what  I  can  gather  from  the  biographies  of  that  great 
poet,  that  that  would  be  just  the  kind  of  law  he  would  natu- 
rally be  familiar  with.  That  there  was  a  statute  during 
Elizabeth's  and  James'  reigns  providing  that  ale  should  be 
sold  only  in  sealed  vessels  of  standard  capacity,  and  that  vi- 
olations of  this  law  were  to  be  prosecuted  in  court  leet, 
would  be  a  matter  of  common  knowledge.  If  not  a  matter 
of  common  knowledge,  of  what  benefit  would  it  be  to  the 
public?  Shakespeare,  undoubtedly,  was  well  versed -in  all 
laws  which  pertained  to  stone  jugs  and  sealed  quarts,  but  if 
that  proves  him  a  member  of  the  legal  fraternity,  I  throw  up 
my  brief. 

The  scene  from  All's  Well  that  Ends  Well,  where  the 
King  of  France  compels  Bertram  to  marry  Helena  as  a  re- 
ward for  having  healed  his  fistula,  is  cited  by  Lord  Camp- 
bell2 as  proof  that  Shakespeare  had  an  accurate  knowledge 
of  the  law  in  England  respecting  the  incidents  of  military 

1  Shakespeare's  Legal  Acquirements,  63. 

2  Shakespeare's  Legal  Acquirements.  67. 


34 

tenure  or  tenure  in  chivalry.  The  incidents  of  that  tenure 
are  dwelt  upon  in  this  scene,  with  wardship  of  minors,  and 
the  right  of  the  guardian  to  dispose  of  the  minor  in  marriage 
at  his  pleasure.  This  law  was  in  full  force  in  the  reign  oi 
Elizabeth  (and  Campbell  refers  to  Littleton  to  prove  this), 
but  Littleton  says  that  the  guardian  may  not  disparage  the 
ward  by  a  misalliance  ;  and  Helena  not  being  of  noble  de- 
scent, it  was  beyond  the  power  of  the  king  to  compel  Ber- 
tram to  marry  her ;  and  of  this  Shakespeare  seems  to  have 
been  blissfully  ignorant.  Had  he  been  a  lawyer,  he  would 
not  have  made  this  blunder. 

In  The  Taming  of  the  Shrew,  Act  i,  Scene  2,  Tranio 

"And  do  as  adversaries  do  in  law, 

Strive  mightily,  but  eat  and  drink  as  friends." 

This  evidently  refers  to  the  barristers  in  the  case,  and  not 
to  the  parties,  but  it  does  not  prove  that  Shakespeare  must 
have  been  a  lawyer  himself  in  order  to  have  known  it.  He 
associated  with  lawyers,  and  undoubtedly  had  seen  them  in 
forensic  heat,  and  then  aiterwards  dined  with  them  in 
Alsatia. 

In  Othello,  lago  observes  : 

"Faith,  he  to-night  hath  boarded  a  land  carack  : 
If  it  prove  lawful  prize,  he's  made  forever." 

I  hardly  see  how  this  goes  to  prove  that  Shakespeare  was 
a  common  law  lawyer,  because  a  "prize"  was  a  matter 
purely  within  the  jurisdiction  of  Admiralty,  and  Proctors, 
or  men  versed  in  civil  law,  practiced  in  that  Court,  and 
there  was  nothing  in  the  common  law  from  which  Shakes- 
peare could  have  learned  anything  regarding  "lawful 
prizes." 


35 

Lord  Campbell  says  that  in  Julius  Caesar  he  cannot  find 
a  single  instance  of  a  Roman  being  made  to  talk  like  an 
English  lawyer, l  but  Antony  in  the  funeral  oration  says  : 

"But  here's  a  parchment,  with  the  seal  of  Cassar; 

I  found  it  in  his  closet ;  't  is  his  will, 

Let  but  the  commons  hear  this  testament, " 

Here  is  as  much  technical  law  as  is  shown  in  the  deer's 
testament  in  As  You  Like  It,  which  Lord  Campbell  thinks 
proves  his  lawyership.  Further  on,  he  says  : 

"Moreover,  he  hath  left  you  all  his  walks, 
His  private  arbours,  and  new-planted  orchards, 
On  this  side  Tiber ;  he  hath  left  them  you, 
And  to  your  heirs  forever,  common  pleasures, 
To  walk  abroad,  and  recreate  yourselves." 

I  am  willing  to  concede  that  this  is  not  the  talk  of  a  law- 
yer, and,  therefore,  perhaps  should  agree  with  the  dis- 
tinguished chancellor  in  that  respect,  but  it  is  as  much  the 
talk  of  a  lawyer  as  many  passages  which  he  cites.  When 
he  says : 

"He  hath  left  them  you, 
And  to  your  heirs  forever," 

it  is  unnecessary  and  not  legally  accurate,  because  in  order 
to  give  the  public  a  perpetual  right  in  real  estate,  heirs 
should  not  be  mentioned. 

Shakespeare  has  given  us  the  historical  play  King 
John,  but  in  it  no  mention  is  made  of  that  great  charter  of 
English  liberties  forced  from  King  John  at  Runnymede  on 
that  glorious  i5th  day  of  June,  1215,  and  nowhere  in  that 
play  is  Magna  Charta  mentioned,  nor  is  it  in  any  of  the 


1    Shakespeare's  Legal  Acqnirements»  117. 


36 

works  that  Shakespeare  wrote.  Can  we  conceive  that  a 
man  trained  to  the  law  would  have  written  King  John 
and  not  have  mentioned  Magna  Charta?  If  Sir  Francis 
Bacon,  as  some  claim,  had  been  the  author  of  this  play,  do 
any  of  you  gentlemen  imagine  for  a  moment  that  this  great 
charter  of  English  liberty  would  have  been  ignored?  This 
omission  is  enough  to  show  both  the  absurdity  of  the 
Baconian  theory  and  the  fact  that  Shakespeare  was  not  a 
lawyer. 

The  Mecca  of  all  the  disciples  of  Shakespeare's  lawyer- 
ship  is  The  Merchant  of  Venice,  and  there  they  find  indis- 
putable evidences  that  end,  with  many  of  them,  the  discus- 
sion of  this  great  question. 

The  gist  of  the  judgment  in  Shylock  v.  Antonio  was  that 
the  bond  for  a  pound  of  flesh  was  a  valid  instrument,  and 
gave  the  plaintiff  a  right  to  exact  the  forfeiture ;  yet,  if  he 
exacted  the  forfeiture,  he  was  guilty  of  murder.  Assuredly, 
this  was  not  the  common  law,  for  by  that  law  the  condition 
was  void  whether  it  exacted  a  penalty  or  commanded  an  act 
involving  a  crime. 

Portia  came  to  assist  the  Duke,  who  was  the  presiding 
justice  in  his  own  court,  and  she  held  that  by  the  law  of 
Venice, 

"Why,  this  bond  is  forfeit; 
And  lawfully  by  this  the  Jew  may  claim 
A  pound  of  flesh,  to  be  by  him  cut  off 
Nearest  the  merchant's  heart." 

and  says  : 

"For  the  intent  and  purpose  of  the  law 

Hath  full  relation  to  the  penalty, 

Which  here  appeareth  due  upon  the  bond." 


37 

Further  on  : 

"A  pound  of  that  same  merchant's  flesh  is  thine ; 
The  court  awards  it  and  the  law  doth  give  it." 

And  again  : 

"And  you  must  cut  this  flesh  from  off  his  breast ; 
The  law  allows  it,  and  the  court  awards  it." 

Therefore,  by  this  decision  this  bond  was  held  to  be  a 
valid  and  a  subsisting  obligation.  It  is  now,  and  ever  has 
been,  under  the  English  Common  Law,  a  principle  that 
where  the  law  grants  something  it  also  grants  that  without 
which  the  grant  cannot  be.  It  would  be  an  idle  grant  to 
sell  a  man  a  ton  of  hay  in  your  barn  and  then  not  allow  him 
to  come  on  your  premises  to  get  the  hay.  This  is  not,  and 
never  was,  the  law.  Every  grant  carries  with  it  such  a  col- 
lateral right  as  will  make  its  services  effectual.  The  excel- 
lent and  wise  expounder  of  the  law,  who,  with  the  learned 
Doctor  Bellario,  had  "turned  over  many  books"  in  looking 
up  and  satisfying  herself  of  the  law  of  the  case,  and  who 
was  also  furnished  with  Bellario's  opinion,  after  taking  her 
seat  upon  the  judge's  bench,  had  said  to  the  plaintiff 
Shylock : 

"Of  a  strange  nature  is  the  suit  you  follow. 
Yet  in  such  rule  that  the  Venetian  law 
Cannot  impugn  you  as  you  do  proceed. — " 

The  bond  in  this  case  had  been  duly  executed  and  de- 
livered, and  was  conditioned  for  the  payment  of  a  certain 
sum  of  money  at  a  certain  time  and  place  therein  stated, 
and  upon  the  failure  of  Antonio  to  comply  with  the  condi- 
tions oi  the  bond,  he  was  to  forfeit  to  Shylock  a  pound  of 
flesh  to  be  cut  off  and  taken  from  the  body  of  Antonio  by 
Shylock. 


38 

And  then  after  this  adjudication  that  the  bond  was  per- 
fectly valid,  this  learned  doctor  of  the  law  says,  contrary  to 
every  principle  of  natural  justice  and  English  Common 
Law, 

"This  bond  doth  give  thee  here  no  jot  of  blood ; 

The  words  expressly  are  a  pound  of  flesh : 

Take  then  thy  bond,  take  thou  thy  pound  of  flesh ; 

But,  in  the  cutting  of  it,  if  thou  dost  shed 

One  drop  of  Christian  blood,  thy  lands  and  goods 

Are,  by  the  laws  of  Venice,  confiscated 

Unto  the  state  of  Venice." 

And  when  Shylock,  amazed  at  this  kind  of  justice,  as  well  he 
might  be,  asks  Portia,  "Is  that  the  law?"     She  answers  : 
"Thyself  shall  see  the  act ; 
For,  as  thou  urgest  justice,  be  assur'd 
Thou  shalt  have  justice,  more  than  thou  desirest." 

Then  she  says : 

"Therefore,  prepare  thee  to  cut  off  the  flesh. 

Shed  thou  no  blood ;  nor  cut  thou  less  nor  more 

But  just  a  pound  of  flesh  :  if  thou  tak'st  more 

Or  less  than  just  a  pound,  be  it  but  so  much 

As  makes  it  light  or  heavy  in  the  substance, 

Or  the  division  of  the  twentieth  part 

Of  one  poor  scruple — nay,  if  the  scale  do  turn 

But  in  the  estimation  of  a  hair, 

Thou  diest,  and  all  thy  goods  are  confiscate." 

And  when  the  Jew  says  : 

"Give  me  my  principal  and  let  me  go," 

that  too  is  refused  him  by  this  immaculate  justice,  who  says  : 
"He  hath  refus'd  it  in  open  court; 
He  shall  have  merely  justice,  and  his  bond." 


39 

This  is  strange  law,  that  because  a  creditor  has  refused  a 
tender,  he  forfeits  all  right  to  his  debt. 
And  then  the  Jew  says  : 

"Shall  I  have  not  barely  my  principal?" 
Again,  Justice,  who  is  blind,  says  : 

"Thou  shall  have  nothing  but  the  forfeiture, 
To  be  so  taken  at  thy  peril,  Jew," 

And  then  Shylock,  disgusted  with  these  sharp  "quiddits"  of 
the  law,  says : 

"Why,  then  the  devil  give  him  good  of  it ! 
I'll  stay  no  longer  question." 

Then  he  is  pulled  up  by  the  halter  and  informed  that  that 
immaculate  law  "hath  yet  another  hold  on  you."  Then  she 
proceeds  to  strip  the  Jew  of  all  his  goods  and  chattels,  be- 
cause he  has  entered  into  an  attempt  against  the  life  of  a 
citizen,  by  taking  a  bond,  which  is  held  by  the  court  to  be 
perfectly  legal,  and  which  he  is  merely  asking  the  court  to 
enforce. 

The  bond  in  this  case,  according  to  the  common  law  in 
England  in  Shakespeare's  time,  as  well  as  in  ours,  was  ab- 
solutely void,  because  to  compel  an  enforcement  of  such  a 
condition,  would  be  contrary  to  public  policy  and  public 
morals.  There  could  be  no  decree  founded  upon  it,  nor  no 
action  maintained  upon  it.  It  was  simply  a « 'piece  of  waste 
paper,"  and  in  a  suit  upon  that  bond  the  court  would  award 
no  penalty,  as  the  law  would  give  none. 

Imagine  a  lawyer  writing  down  such  nonsense  as  that  and 
calling  it  law.  The  only  saving  clause  therein  for  Shakes- 
peare's legal  acumen  is  that  he  put  this  law  into  the  mouth 
of  a  woman,  and  not  in  that  of  a  man. 


4o 

In  Act  2,  Scene  3,  of  Cymbeline,  he  says  : 

"I  will  make 

One  of  her  women  lawyer  to  me,  for 
I  yet  not  understand  the  case  myself." 

Possibly  that  was  Shakespeare's  reason  for  having  Portia 
decide  this  case. 

At  the  end  of  this  wonderful  exhibition  of  lawyership, 
this  court  of  law,  then  at  once  turned  into  a  court  of  Chan- 
cery, a  shifting  of  jurisdiction  that  was  not  then  known  in 
jurisprudence,  ordered  Shylock  to  make  a  deed  of  gift  of  all 
he  dies  possessed,  which,  of  course,  would  include  all  after 
acquired  property,  both  real  and  personal,  and  such  a  deed 
as  this  would  not,  and  could  not,  convey  any  interest  in 
after  acquired  property,  either  real  or  personal,  under  the 
civil  law,  which  was  the  law  in  force  in  Venice.  It  would 
have  no  effect  under  the  common  law,  unless  the  deed  of 
gift  was  construed  to  be  a  will,  but  this  could  not  be,  be- 
cause by  the  terms  of  this  decree,  the  deed  was  to  be  re- 
corded in  court,  and  the  consideration  being  expressed 
therein,  would  show  that  it  was  not  his  will,  because  it  was 
done  upon  compulsion,  and  certainly  it  would  be  liable  to 
be  set  aside  for  undue  influence. 

By  some  of  the  advocates  of  the  lawyer  theory  of  Shakes- 
peare it  has  been  intimated  that  the  law  of  Venice  might 
have  been  as  held  by  Portia  in  this  case.  If  that  be  true, 
this  does  not  prove  that  Shakespeare  had  knowledge 
of  the  common  law,  but  this  is  not  true,  for  it  was  a  maxim 
of  the  civil  law,  ex  turpe  causa  non  oritur  actio. 

One  author  has  seen  the  absurdity  of  this  deed  of  gift, 1  and 
has  suggested  that  it  might  be  good  as  a  gift  causa  mortis^ 


Davis,  the  Law  in  Shakespeare  No.  56. 


or  as  a  will  under  the  civil  law,  but  Cooper's  "Justinian," 
Lib.  2,  Tit.  12,  shows  this  was  impossible,  as  it  would  not 
have  one  element  necessary  for  the  validity  of  a  will.  This 
was  not  Shylock's  voluntary  act,  but  was  done  upon  com- 
pulsion when  he  was  under  the  power  or  control  of  others, 
and  the  fact  that  it  was  done  upon  compulsion  must  have 
appeared  in  the  instrument  itself. 
In  Act  i,  Scene  3,  Shylock  says  : 

"Go  with  me  to  a  notary ;  seal  me  there 

Your  single  bond  ;  and,  in  a  merry  sport, 

If  you~repay"nTe  not  on  such  a  day, 

In  such  a  place,  such  sum  or  sums  as  are 

Express'd  in  the  condition,  let  the  forfeit 

Be  nominated  for  an  equal  pound 

Of  your  fair  flesh,  to  be  cut  off  and  taken 

In  what  part  of  your  body  pleaseth  me." 

A  single  bond,  simplex  obligata,  according  to  all  legal  ; 
definition,  is  a  bond  without  any  condition  collateral  to  the 
bond,  but  the  bond  which  Shylock  described  had  such  a 
collateral  condition.  In  Shakespeare's  day  almost  all  con-  ' 
tracts  were  bonds  ;  that  is,  they  were  under  seal.  This  has 
been  changed  through  the  enlarging  of  the  law  merchant, 
so  that  to-day  but  few  instruments,  except  bonds  with  col- 
lateral conditions,  and  contracts  regarding  real  estate,  are 
sealed.  But,  in  Shakespeare's  day,  single  bonds  were  the 
common,  ordinary  contracts  of  the  day,  and  any  lawyer  of 
that  day,  or  anybody  who  had  spent  two  weeks  in  a  law  of- 
fice, ought  to  have  known  the  difference  between  a  single 
bond,  such  as  Shylock  says  they  will  go  to  a  notary  and 
seal,  and  a  bond  with  a  collateral  condition,  such  a  bond  as 
he  was  asking  for  and  described. 


42 

Many  of  those  who  advocate  the  theory  that  Shakespeare 
was  a  lawyer  cite  what  Shylock  says  in  Act  4,  Scene  i  : 

"I  have  possess'd  your  grace  of  what  I  purpose ; 

And  by  holy  Sabbath  have  I  sworn 

To  have  the  due  and  forfeit  of  my  bond. 

If  you  deny  it,  let  the  danger  light 

Upon  your  charter  and  your  city's  freedom." 

Lord  Campbell,  very  discreetly,  does  not  cite  this  as  any 
evidence  of  Shakespeare's  legal  knowledge.  Venice  was  an 
independent  sovereign  state,  and  did  not  receive  its  charter 
from  some  higher  power  like  a  municipality  in  Shakes- 
peare's England,  and  was  not  in  danger  of  losing  its  muni- 
cipal rights  given  by  way  of  charter.  A  lawyer  would  not 
have  made  this  blunder. 

If  Shakespeare  was  a  lawyer,  it  would  appear  that  he  had 
a  very  poor  opinion  of  his  own  profession  from  what  he  says 
in  several  of  the  plays  regarding  lawyers. 

In  The  Merchant  of  Venice,  Act  3,  Scene  2,  Bassanio 
says: 

"In  law,  what  plea  so  tainted  and  corrupt 
But,  being  season'd  with  a  gracious  voice, 
Obscures  the  show  of  evil  ?" 

In  2  Henry  Sixth,  Act  4,  Scene  2,  Dick  says  to  Cade  : 
"The  first  thing  we  do,  let's  kill  all  the  lawyers." 

In  King  Lear,  Act  i,  Scene  4 : 

"Kent.       This  is  nothing,  fool. 

Fool.  Then  't  is  like  the  breath  of  an  unfee'd  lawyer;  you 
gave  me  nothing  for  't. — Can  you  make  no  use  of  noth- 
ing, nuncle  ?" 


43 

2  Henry  Sixth,  Act  4,  Scene  4  : 

"All  scholars,  lawyers,  courtiers,  gentlemen, 
They  call  false  caterpillars," 

Timon  of  Athens,  Act  4,  Scene  3,  Timon  says : 

"Crack  the  lawyer's  voice  ; 
That  he  may  never  more  false  title  plead, 
Nor  sound  his  quillets  shrilly  :" 

As  You  Like  It,  Act  3,  Scene  2,  Rosalind  says  : 

"With  lawyers  in  the  vacation;  for  they  sleep  between  term 
and  term,  and  then  they  perceive  not  how  time  moves." 

Romeo  and  Juliet,  Act  i,  Scene  4: 
Fairy  Mab  gallops 
"O'er  lawyers'  fingers,  who  straight  dream  on  fees." 

As  You  Like  It,  Act  4,  Scene  i  : 

"I  have  neither  the  scholar's  melancholy,  which  is  emulation  ; 
nor  the  musician's,  which  is  fantastical ;  nor  the  courtier's,  which 
is  proud  ;  nor  the  soldier's  which  is  ambitious  ;  nor  the  lawyer's, 
which  is  politic." 

In  Measure  for  Measure,  Act  i,  Scene  2,  the  clown  in 
comforting  the  old  lady,  who  had  kept  a  house  of  ill  fame  in 
the  suburbs  of  the  city,  when  she  was  in  despair  by  the  pro- 
clamation commanding  that  all  such  houses  be  plucked 
down,  says : 

"Come,  fear  not  you;  good  counsellors  lack  no  clients." 

Lord  Campbell  says  that  this  comparison  is  not  very  flat- 
tering to  the  bar,  but  it  seems  to  show  a  familiarity  with 
both  the  professions  alluded  to.  So  here  is  another  special 
trade  or  avocation  that  Shakespeare  is  accused  of  having 
more  than  ordinary  knowledge  of. 


44 

He  has  not  a  very  high  opinion  of  the  way  law  is  ad- 
ministered, which  may  have  come  from  his  father's  ex- 
perience with  courts ;  but  lawyers  are  not  apt  to  have 'the 
opinion  that  Shakespeare  expresses  in  regard  to  the  admin- 
istration of  justice. 

In  Hamlet,  Act  3,  Scene  3,  the  King  in  his  soliloquy 
says  : 

"In  the  corrupted  currents  of  this  world 
Offence's  gilded  hand  may  shove  by  justice, 
And  oft  't  is  seen  the  wicked  prize  itself 
^        Buys  out  the  law ;  but 't  is  not  so  above  : 
There  is  no  shuffling,  there  the  action  lies 
In  his  true  nature,  and  we  ourselves  compell'd 
Even  to  the  teeth  and  forehead  of  our  faults 
To  give  in  evidence." 

King  Lear,  Act  4,  Scene  6: 

"Plate  sin  with  gold, 

And  the  strong  lance  of  justice  hurtless  breaks ; 
Arm  it  in  rags,  a  pigmy's  straw  does  pierce  it." 

Again,  in  Cymbeline,  Act  2.  Scene  3  : 

"And  't  is  gold 
Which  makes  the  true  man  kill'd,  and  saves  the  thief." 

Pericles,  Prince  of  Tyre,  Act  2,  Scene  i  : 
"Help,  master,  help !  here's  a  fish  hangs  in  the  net,  like  a  poor 
man's  right  in  the  law ;  't  will  hardly  come  out." 

Measure  for  Measure,  Act  5,  Scene  i  : 
"Laws  for  all  faults 
But  faults  so  countenanced  that  the  strong 

statutes 

Stand  like  the  forfeits  in  the  barber's  shop 
As  much  in  mock  as  mark." 


45 

But  "the  unkindest  cut  of  all"  is  where  King  Lear,  Act 
3,  Scene  6,  says: 

"I'll  see  their  trial  first. — Bring  in  their  evidence. — 
(To  Edgar)  :      Thou  robed  man  of  justice,  take  thy  place, — 
(To  the  fool)  :    And  thou,  his  yoke-fellow  of  equity, 
Bench  by  his  side." 

This  may  have  been  prophetic  of  the  union  of  law  and 
equity,  and  some  such  union  of  jurisdiction  has  been  in- 
troduced in  modern  times,  but  it  was  not  very  complimen- 
tary to  make  Mad  Tom  his  Chief  Justice,  and  the  fool  his 
Chancellor.  Shakespeare  also  gives  some  wholesome  ad- 
vice to  litigants.  This  was  probably  the  result  of  the  ex- 
perience which  his  father  had  had. 

Measure  for  Measure,  Act  2,  Scene  i : 

"We  must  not  make  a  scarecrow  of  the  law 

Setting  it  to  fear  the  birds  of  prey 

And  let  it  keep  one  shape  until  custom  make  it 

Their  perch,  and  not  their  terror." 

Timon  of  Athens,  Act  3,  Scene  5  : 
"The  law  is  past  depth 
To  those  that  without  heed  do  plunge  into  it." 

Twelfth  Night,  Act  3,  Scene  4  : 

"Still  you  keep  o'  the  windy  side  of  the  law :  good." 

What  Jack  Cade  says  to  Dick  seems  to  be  a  resulting  con- 
clusion from  Shakespeare's  experience  with  his  father's 
mortgages : 

"Is  not  this  a  lamentable  thing,  that  of  the  skin  of  an  innocent 
lamb  should  be  made  parchment?  that  parchment,  being  scrib- 
bled o'er,  should  undo  a  man  ?  Some  say  the  bee  stings ;  but  I 
say  't  is  the  bee's  wax,  for  I  did  but  seal  once  to  a  thing,  and  I 
was  never  mine  own  man  since." 


46 

Shakespeare  gives  his  opinion  of  the  jury  as  shown  by 
what  Angelo  says  in  Measure  for  Measure,  Act  2,  Scene  i : 

"I  do  not  deny, 

The  jury  passing  on  the  prisoner's  life, 
May  in  the  sworn  twelve  have  a  thief  or  two 
Guiltier  than  him  they  try.     What's  open  to  justice, 
That  justice  seizes  ;  what  knows  the  law 
That  thieves  do  pass  on  thieves  ?" 

King  Henry  Eighth,  Act  5,  Scene  i : 

"And  not  ever 

The  justice  and  the  truth  o'  the  question  carries 
The  due  o'  the  verdict  with  it." 

When  Shakespeare  gives  us  a  description  of  Justice  Shal- 
low and  his  proceedings  it  is  such  a  faithful  description  of  a 
country  justice  that  it  can  be  confined  to  no  age  or  country, 
and  it  is  frequently  realized  in  our  justice  courts  here.  This 
description  and  the  other  pointed  allusions  to  these  petit 
magistrates  have  been  attributed  to  Shakespeare's  own  ex- 
perience with  Sir  William  Lucy ;  and  if  this  were  true,  the 
following  from  King  Lear,  Act  4,  Scene  6,  would  seem  to 
be  in  accordance  with  the  saying,  "No  rogue  e'er  felt  the 
halter  draw  with  good  opinion  of  the  law :" 

"What,  art  mad?  A  man  may  see  how  this  world  goes  with 
no  eyes.  Look  with  thine  ears ;  see  how  yond  justice  rails  upon 
yond  simple  thief.  Hark,  in  thine  ear :  change  places,  and, 
handy-handy,  which  is  the  justice,  which  is  the  thief  ?" 

Also,  2  Henry  Sixth,  Act  4,  Scene  7  : 

"Thou  hast  appointed  justices  of  the  peace,  to  call  poor  men 
before  them  about  matters  they  were  not  able  to  answer." 

But  his  description  of  a  justice  law  suit,  put  into  the 
mouth  of  Coriolanus,  will  be  recognized  by  many  of  my 


47 

brother  members  of  the  Bar,  who  have  had  the  pleasure  of 
practicing  in  these  justice  courts,  and  laymen  have  seen 
enough  to  know  that  such  courts  are  not  usually  presided 
over  by  men  of  deep  and  erudite  judicial  minds: 

In  Coriolanus,  Act  2,  Scene  i,  Menenius,  in  addressing 
the  tribunes,  whom  Shakespeare  it  seems  mistook  for  mag- 
istrates, says  : 

"You  are  ambitious  for  poor  knaves'  caps  and  legs;  you  wear 
out  a  good  wholesome  forenoon  in  hearing  a  cause  between  an 
orangewife  and  a  fosset-seller,  and  then  rejourn  the  controversy  of 
three-pence  to  a  second  day  of  audience.  When  you  are  hearing 
a  matter  between  party  and  party,  if  you  chance  to  be  pinched 
with  the  colic,  you  make  faces  like  mummers,  set  up  the  bloody 
flag  against  all  patience,  and  dismiss  the  controversy  bleeding,  the 
more  entangled  by  your  hearing ;  all  the  peace  you  make  in  their 
cause  is,  calling  both  the  parties  knaves." 

The  description  of  the  person  of  a  justice  of  the  peace  in- 
dicates familiarity  with  that  class  of  citizens,  in  Henry 
Fifth,  Act  i,  Scene  2  : 

"The  sad-eyed  justice  with  the  surly  hum." 

And  in  As  You  Like  It,  Act  2,  Scene  7  : 

"And  then  the  justice, 
In  fair  round  belly  with  good  capon  lin'd, 
With  eyes  severe  and  beard  of  formal  cut, 
Full  of  wise  saws  and  modern  instances." 

As  a  further  illustration  of  Shakespeare's  knowledge  of 
law  as  well  as  his  prophetic  genius,  I  cite  from  The  Mer- 
chant of  Venice,  Act  3,  Scene  5  : 

"This  making  of  Christians  will  raise  the  price  of  hogs;  if  we 
grow  all  to  be  pork  eaters,  we  shall  not  shortly  have  a  rasher  on 
the  coals  for  money." 


48 

So  it  seems  that  Shakespeare  saw  as  in  a  vision  the  meat 
trusts  that  are  now  plaguing  this  generation ;  and  Jessica, 
in  the  same  scene,  replying  to  Lorenzo,  says  : 

"Nay,  you  need  not  fear  us,  Lorenzo,  Launcelot  and  I  are  out. 
He  tells  me  flatly,  there  is  no  mercy  for  me  in  heaven  because  I 
am  a  Jew's  daughter ;  and  he  says  you  are  no  good  member  of  the 
Commonwealth,  for  in  converting  Jews  to  Christians  you  raise  the 
price  of  pork." 

Is  perhaps  as  good  an  illustration  of  his  lawyership  as 
many  that  are  quoted  to  sustain  it,  because  he  evidently  un- 
derstood that  it  was  contrary  to  public  policy  to  enter  into 
combinations  to  raise  the  price  of  food,  a  principle  of  the 
common  law  not  so  well  understood  in  this  day  as  it  was  in 
Shakespeare's. 

As  another  incident  of  his  prophetic  knowledge,  I  quote 
from  King  Lear,  Act  2,  Scene  i  : 

"All  ports  I'll  bar;  the  villain  shall  not  'scape  : 
The  Duke  must  grant  me  that.     Besides,  his  picture 
I  will  send  far  and  near,  that  all  the  kingdom 
May  have  note  of  him." 

This  is  said  to  be  another  incident  of  the  law  knowledge 
ot  Shakespeare;  and  Lord  Campbell  says:  "One  would 
suppose  that  photography,  by  which  this  mode  of  catching 
criminals  is  now  practiced,  had  been  invented  in  the  reign 
of  King  Lear." 

Lord  Campbell,  who  in  his  Lives  of  the  Chief  Justices  of 
England, l  says  :  "He,  (Shakespeare),  is  uniformly  right 
in  his  law  and  in  his  use  of  legal  phraseology,  which  no 
mere  quickness  of  intuition  can  account  for,"  and  who  has 
culled  1 60  citations  to  prove  that  Shakespeare  was  a  lawyer, 


1    Lives  of  Chief  Justices,  213.    Note  2. 


49 

has  failed  to  convince  himself  even,  and  near  the  close  of 
his  argument  says :  "We  cannot  argue  with  confidence  on 
the  principles,  which  would  guide  us  to  safe  conclusions  re- 
specting ordinary  men,  when  we  are  reasoning  respecting 
one  of  whom  it  was  truly  said : 

'Each  change  of  many-coloured  life  he  drew, 
Exhausted  worlds,  and  then  imagined  new  ; 
Existence  saw  him  spurn  her  bounded  reign, 
And  panting  Time  toiled  after  him  in  vain." 

His  opinion  reminds  one  forcibly  of  that  of  the  worthy 
Mrs.  Partington,  who  when  asked,  "Are  you  in  favor  of  the 
prohibitic  laws,  or  the  license  laws?"  said  "Sometimes  I 
think  I  am,  and  then  again  I  think  I  am  not." 

And  he  says  that  in  charging  a  jury  on  the  issue  of 
whether  William  Shakespeare  ever  was  a  clerk  in  an  at- 
torney's office  : 

"I l  should  hold  that  there  is  evidence  to  go  to  the  jury  in 
support  of  the  affirmative,  and  I  should  tell  the  twelve  gentle- 
men in  the  box  that  it  is  a  case  entirely  for  their  decision, — 
without  venturing  even  to  hint  to  them,  for  their  guidance, 
any  opinion  of  my  own."  He  further  says  should  the}' 
agree  in  a  verdict  either  way,  he  could  not  properly  set  it 
aside  and  grant  a  new  trial,  but  that,  in  all  probability, 
after  they  had  been  some  hours  in  deliberation,  he  would 
find  that  there  was  no  chance  of  their  agreeing,  and  that 
after  he  had  locked  them  up  for  the  night,  and  kept  them 
all  night  without  eating  or  drinking,  and  "without  fire, 
candle-light  excepted,"  they  would  come  into  court  next 
morning  still  saying,  "we  cannot  agree."  In  re-charging 
the  jury  he  says  he  would  not  hesitate  to  tell  them  that  there 

1    Shakespeare's  Legal  Acquirements,  9. 


50 

had  been  a  great  deal  of  misrepresentation  and  delusion  as 
to  Shakespeare's  opportunities  when  a  youth  of  acquiring 
knowledge,  and  as  to  the  knowledge  he  had  acquired. 

Cushman  K.  Davis,  who  wrote  a  work  of  over  three  hun- 
dred pages  to  show  that  Shakespeare  was  a  lawyer,  makes 
the  following  argument : 

"Shakespeare  had  a  lawyer's  conservatism.  He  re- 
spected the  established  order  of  things.  He  chisels  the  re- 
publican Brutus  in  cold  and  marble  beauty,  but  paints  with 
beams  of  sunlight  the  greatness,  bravery,  and  generosity  of 
imperial  Caesar.  Coriolanus  is  the  impersonation  of  pa- 
trician contempt  for  popular  rights.  Shakespeare  passes 
unnoticed  the  causes  which  led  to  Cade's  insurrection,  be- 
cause he  cares  not  for  them, — causes  so  just  that  honorable 
terms  were  exacted  by  the  insurgents.  His  portrait  of  Joan 
of  Arc,  the  virgin  mother  of  French  nationality,  who  raised 
it  to  glory  because  the  people  believed  in  her,  is  a  great  of- 
fence. There  is  nowhere  a  hint  of  sympathy  with  personal 
rights  as  against  the  sovereign,  nor  with  parliament,  then 
first  assuming  its  protective  attitude  towards  the  English 
people."1 

This  is  a  very  specious  argument  to  prove  Shakespeare  a 
lawyer.  The  history  of  the  Bar,  from  early  times  until 
now,  negates  this  conclusion.  Lord  Coke  resisted  the  pre- 
rogative of  the  crown.  He  upheld  the  chartered  rights  of 
Englishmen,  and  maintained  the  equality  of  men  in  law, 
and  he  was  one  of  the  greatest  lawyers  that  ever  lived,  and 
was  living  in  Shakespeare's  time. 

History  shows  that  the  Bar  has  always  stood  for  liberty, 
the  rights  of  the  people,  and  the  oppressed.  They  have 


1    The  Law  in  Shakespeare,  34. 


been  foremost  in  reforms  and  revolutions,  and  it  is  one  of  the 
strongest  arguments  to  show  that  Shakespeare  was  not  a 
lawyer,  and  never  had  a  legal  training,  nor  the  broadening 
of  the  mind  which  a  legal  training  gives,  that  he  did  show 
acquiescence  in  the  established  order  of  things,  and  that  he 
made  no  mention  of  the  rights  of  Englishmen  under  their 
great  charter. 

But  the  law  is  not  the  only  special  science  that  has  been 
attributed  to  Shakespeare.  The  bibliography  of  Shakes- 
peare shows  that  many  treatises  have  been  written  to  show 
his  special  knowledge  in  various  other  arts  and  sciences. 

In  the  Tempest,  the  last  of  his  works,  Act  i,  Scene  i,  is 
given  a  description  of  a  ship  at  sea  during  a  severe  gale,  the 
commands  given  by  the  officers,  and  the  resulting  action  of 
the  ship. 

Lord  Mulgrave,  a  distinguished  naval  officer,  says  in  re- 
gard to  this  scene:  "The  first  scene  of  the  Tempest  is  a 
very  striking  instance  of  the  great  accuracy  of  Shakes- 
peare's knowledge  in  a  professional  science,  the  most  diffi- 
cult to  attain  without  the  help  of  experience." 

Captain  E.  K.  Calver,  H.  B.  R.  N.,  has  written  an  ex- 
haustive article  upon  Shakespeare's  seamanship  and  knowl- 
edge of  nautical  matters,  and  says  that  Shakespeare  displays 
a  great  knowledge  in  regard  to  those  matters. 

In  part  2,  of  King  Henry  Fourth,  in  the  famous  soliloquy, 
the  King  says : 

"O  thou  dull  god,  why  liest  thou  with  the  vile 
In  loathsome  beds,  and  leav'st  the  kingly  couch 
A  watch-case  or  a  common  larum-bell? 
Wilt  thou  upon  the  high  and  giddy  mast 
Seal  up  the  ship-boy's  eyes,  and  rock  his  brains 
In  cradle  of  the  rude  imperious  surge 


52 

And  in  the  visitation  of  the  winds, 
Who  take  the  ruffian  billows  by  the  top, 
Curling  their  monstrous  heads  and  hanging  them 
With  deafening  clamour  in  the  slippery  clouds, 
That  with  the  hurly  death  itself  awakes  ? 
Canst  thou,  O  partial  sleep,  give  thy  repose 
To  the  wet  sea-boy  in  an  hour  so  rude, 
And  in  the  calmest  and  most  stillest  night, 
With  all  appliances  and  means  to  boot, 
Deny  it  to  a  king  ?     Then,  happy  low,  lie  down  ! 
Uneasy  lies  the  head  that  wears  the  crown." 

As  You  Like  It,  Act  2,  Scene  7  : 

"Which  is  as  dry  as  the  remainder  biscuit 
After  a  voyage." 

He  makes  references  to  these  same  matters  in  532  dif- 
ferent places  in  his  works,  and  at  all  times,  so  it  is  said  by 
those  who  claim  to  know,  he  uses  nautical  terms  correctly, 
and  so  it  is  claimed  that  he  showed  such  an  intimate  knowl- 
edge of  seamanship,  of  the  action  of  the  ocean,  and  of 
nautical  terms  and  phrases,  that  he  must  have  spent  a  part 
of  his  life  on  the  ocean. 

Many  writers  have  labored  to  show  that  he  must  have 
been  by  trade  a  gardener  from  the  conversation  between 
Perdita,  Polixenes  and  Florizel,  in  The  Winter's  Tale,  Act 
4,  Scene  4,  where  they  discuss  learnedly  about  carnations, 
gilliflower,  and  skillful  grafting  of  fruit  trees.  Some  of  the 
writers  who  have  taken  up  this  subject  cite  very  many  pas- 
sages throughout  his  works,  some  of  them  among  the  most 
beautiful  that  he  ever  wrote,  to  show  his  intimate  knowledge 
of  plants  and  gardening,  and  his  great  affection  for  flowers. 
Numberless  allusions  to  flowers  and  their  culture  are  found 
in  almost  every  play  he  wrote,  and  in  almost  every  act  and 


53 

every  scene.  His  descriptions  are  never  laboured  but  each 
passage  seems  to  be  a  natural  outcome  of  a  keen  and  appre- 
ciative eye  joined  with  a  great  power  and  command  of  the 
fittest  language. 

Other  writers  claim  that  he  shows  great  knowledge  in 
ornithology,  zoology,  and  natural  history,  and  there  are 
many  references  in  his  works  to  these  subjects,  and  he  is 
always,  as  I  understand  it,  absolutely  accurate  in  such  mat- 
ters. It  is  said  by  Knight  that  **He  was  a  naturalist  in  the 
very  best  sense  of  the  word."  In  part  of  King  Henry 
Fourth,  his  description  of  the  cuckoo  is  said  to  be  correct 
and  directly  contrary  to  the  accepted  theory  of  his  day. 

But  in  the  science  of  medicine  Shakespeare  has,  so  his 
medical  commentators  claim,  shown  greater  technical  knowl- 
edge than  many  of  them  think  it  was  possible  for  him  to 
have  acquired  in  any  other  way  than  by  a  special  training  in 
the  mysteries  and  sciences  of  that  art. 

One  writer,  B.  Rush  Field,  quotes  and  comments  on  475 
passages  from  Shakespeare,  covering  the  subject  of  the 
practice  of  medicine,  surgery,  obstetrics,  physiology,  an- 
atomy and  pharmacy.  Of  course  it  is  impossible  to  cite  in 
this  paper  these,  and  many  other  passages  in  Shakespeare 
that  refer  to  that  subject,  but  my  argument  does  not  require 
that  I  prove  Shakespeare  to  have  been  a  doctor  of  medicine, 
but  only  that  I  show  his  almost  universal  knowledge  upon 
all  subjects,  and  his  familiarity  with  the  terms,  phrases,  and 
conditions  peculiar  to  such  subjects  as  tending  to  establish  the 
proposition  that  instead  of  a  special  training  in  any  of  these 
arts  and  sciences,  it  was  his  great  genius  for  adaptation  that 
brought  forth  such  fruits  from  all  of  them. 

His  description  of  apoplexy,  as  portrayed    in    2  Henry 


54 

Fourth,    in  the   famous   interview    between     Chief  Justice 
Gascoigne  and  Falstaff  is  particularly  referred  to. 

Nervous  diseases,  and  all  other  kinds  of  diseases  are  fre- 
quently referred  to  by  him.  His  delineations  of  insanity  in 
King  Lear  and  Hamlet  have  received  the  commendation  of 
distinguished  alienists,  who  say  they  can  diagnose  the  exact 
disease  from  the  facts  Shakespeare  describes.  He  pays 
the  highest  compliment  to  members  of  the  medical  profes- 
sion. He  seems  to  have  discovered  the  circulation  of  the 
blood  before  Harvey  published  his  works,  and  this  is 
shown  in : 

Romeo  and  Juliet,  Act  3,  Scene  i  ; 

Julius  Ceesar,  Act  2,  Scene  i ; 

Measure  for  Measure,  Act  2,  Scene  4 ; 

Coriolanus,  Act  i,  Scene  i  ; 

2  Henry  Fourth,  Act  5,  Scene  2  ; 

Macbeth,  Act  2,  Scene  2  ; 

Lucrece. 

Even  the  scieiice -of  osteopathy,  a  school  of  very  recent 
foundation,  seems  not  to  have  escaped  his  notice,  because  he 
says  in  Macbeth,  Act  5,  Scene  3  : 

"Throw  physic  to  the  dogs  ;  I'll  none  of  it." 

And  in  the  Tempest,  Act  2,  Scene  i  : 
"you  rub  the  sore 
When  you  should  bring  the  plaster." 

In  Act  2,  Scene  i  of  Coriolanus,  Menenius  says: 
"A  letter  for  me !   it  gives  me  an  estate  of  seven  years'   health, 
in  which  time  I  will  make  a  lip  at  the  physician ;  the  most  sov- 
ereign prescription  in  Galen  is  but  empirictic,  and,  to  this  pre- 
servative, of  no  better  report  than  a  horse-drench." 

It  would  seem  that  he  must  have  been  acquainted  with, 


55 

and  read  the  works  of  that  "Wonder  Speaker"  and  "Won- 
der Worker"  Galen,  or  Claudius  Galenus,  the  most  cele- 
brated medical  writer  of  ancient  times,  and  is  not  this  a  key 
which  unlocks  the  mystery  as  to  where  Shakespeare  ob- 
tained all  his  special  technical  knowledge?  He  went  to  its 
source  and  took  it  from  the  fountain  head. 

Even  similia   similibus  curanlur,    the    maxim    of    the 
homeopathic  scfiobl,  seems  not  to  have  escaped  his  notice  as 
shown"m*2  Henry  Fourth,  Act  i,  Scene  i. 
And  in  King  John,  Act  3,  Scene  i : 

"And  falsehood  falsehood  cures,  as  fire  cools  fire 
Within  the  scorched  veins  of  one  new-burned." 

Coriolanus,  Act  4,  Scene  7  : 

"One  fire  drives  out  one  fire ;  one  nail,  one  nail ;" 

Romeo  and  Juliet,  Act  i,  Scene  2  : 

Even  the  Thompsonian  theory  was  apparently  known  to 
him,  for  he  alludes  to  it  in  The  Merchant  of  Venice,  Act  5, 
Scene  i,  and  in  Hamlet,  Act  4,  Scene  7. 

The  euroscopists  are  not  lorgotten  by  Shakespeare,  as  is 
shown  in 

Macbeth,  Act  5,  Scene  3  ; 

Twelfth  Night,  Act  3,  Scene  4 ; 

2  Henry  Fourth,  Act  i,  Scene  2. 

He  evidently  understood  contagious  diseases,  for  in 
Henry  Eighth,  Act  i,  Scene  3,  he  says : 

"  't  is  time  to  give  'em  physic,  their  diseases 
Are  growing  so  catching." 

That  he  understood  the  crisis  or  turning  point  of  diseases 
is  evident :     King  John,  Act  3,  Scene  4  : 
"Before  the  curing  of  a  strong  disease, 
Even  in  the  instant  of  repair  and  health, 


56 

The  fit  is  strongest ;  evils  that  take  leave, 
On  their  departure  most  of  all  show  evil." 

He  seems  also  to  have  understood  what  doctors  now  call 
the  heroic  treatment,  for  in  Hamlet,  Act  4,  Scene  3,  he 
says: 

"diseases  desperate  grown 
By  desperate  appliances  are  reliev'd, 
Or  not  at  all." 

Vivisection  is  also  alluded  to,  in  Act  i,  Scene  5  of  Cym- 
befine": 

"Which  first,  perchance,  she'll  prove  on  cats  and  dogs, 
Then  afterwards  up  higher  :" 

How  accurately  he  described  the  signs  which  indicate 
death  in  Henry  Fifth,  Act  2,  Scene  3  : 

"  'A  made  a  finer  end,  and  went  away,  an  it  had  been  any 
christom  child  :  'a  parted  even  just  between  twelve  and  one,  even 
at  the  turning  of  the  tide;  for  after  I  saw  him  fumble  with  the 
sheets,  and  plat  with  flowers,  and  smile  upon  his  finger's  ends,  I 
knew  there  was  but  one  way ;  for  his  nose  was  as  sharp  as  a  pen 
and  'a  babbled  of  green  fields.  *  *  *  *  'A  bade  me  lay 
'more  clothes  on  his  feet :  I  put  my  hand  into  the  bed  and  felt 
them,  and  they  were  as  cold  as  any  stones  ;  then  I  felt  to  his  knees, 
and  so  upwards,  and  upwards,  and  all  was  as  cold  as  any  stone." 

And  in  2  Henry  Sixth,  Act  3,  Scene  2,  the  description  of 
the  death  of  Duke  Humphrey  has  been  commented  on  by 
Bell  in  his  Principles  of  Surgery,  and  says  that  this  "must 
be  regarded  as  a  perfect  description  of  approaching  dis- 
solution." 

The   same  thing   is    noticed  in    Henry    Eighth,    Act    4, 
\  Scene  2. 

Shakespeare  also  shows  a  great  knowledge  of  drugs  and 

^, , 


57 

poisons  and  their  actions.  For  instance  he  likens  the  action 
of  aconite  to  rash  gunpowder  in  2  Henry  Fourth,  Act  4, 
Scene  4.  See  also  : 

Antony  and  Cleopatra,  Act  i,  Scene  5. 

Othello,  Act  3,  Scene  3. 

The  stimulative  medical  properties  oi  alcohol  were  known 
to  Shakespeare : 

Winter's  Tale,  Act  4,  Scene  4 ; 

Comedy  of  Errors,  Act  4,  Scene  4  ; 

Twelfth  Night,  Act  2,  Scene  5  ; 

Romeo  and  Juliet,  Act  3,  Scene  2  ; 

Macbeth,  Act  i,  Scene  3  ; 

Romeo  and  Juliet,  Act  2,  Scene  3  ; 

Othello,  Act  2,  Scene  i. 

ic  of  the  theologians  have  insisted  that  Shakespeare 
had  made  a  great  study  of  the  Bible  and  of  divinity,  but  as 
I  have  never  seen  the  following  quotation  cited  as  tending 
to  prove  his  knowledge  of  theology,  I  conclude  it  must  have 
escaped  the  attention  of  his  theological  commentators : 

As  You  Like  It : 

"Touchstone:     *     *     *     *     Was't  ever  in  court,  shepherd? 

Corin :  No,  truly. 

Touchstone  :        Then  thou  art  damned. 

Corin  :  -^ay»  I  hope, — 

Touchstone :  Truly,  thou  art  damned,  like  an  ill-roasted  egg 
all  on  one  side. 

Corin  :  For  not  being  at  court?     Your  reason. 

Touchstone :  Why,  if  thou  never  was't  at  court,  thou  never 
saw'st  good  manners ;  if  thou  never  saw'st  good 
manners,  then  thy  manners  must  be  wicked ;  and 
wickedness  is  sin,  and  sin  is  damnation.  Thou 
art  in  a  parlous  state,  shepherd." 


58 

In  Shakespeare's  day  the  word  "manners"  was  equiva- 
lent to  morals,  and  is  evidently  so  used  in  this  passage. 

Now,  is  it  more  probable  that  Shakespeare  could  fully 
describe  the  insanity  of  Hamlet  and  Lear,  could  delineate 
its  symptoms  and  conditions  so  faithfully  and  accurately 
that  the  experts  of  today  can  from  his  description  diagnose 
the  disease  and  its  results  as  well  as  from  an  actual  case, 
that  he  could  express  himself  in  the  technical  language  of 
medicine  precisely  and  accurately,  could  describe  many 
diseases  as  well  as  a  physician,  and  give  the  effects  of 
potent  drugs,  and  this  too  without  any  special  experience  or 
training,  than  that  he  could  use,  as  he  many  times  did,  legal 
words  and  phrases  accurately  without  having  had  a  legal 
training  ? 

Do  we  not  get  a  more  logical  explanation  from  the  fact 
that  he  was  a  man  of  wonderful  genius,  of  great  observa- 
tion, diversified  reading,  of  large  acquaintance  with  men 
learned  in  all  these  subjects ;  and  that  he  had  the  faculty 
and  genius,  not  only  to  absorb  their  knowledge,  but  to  give 
its  results  in  accurate  and  technical  terms  ? 

It  is  impossible  that  in  his  short  life  of  fifty-two  years 
he  could  have  had  experience  and  practice  in  all  or  any  of 
these  professions. 

While  this  later  argument  is  something  like  a  non 
sequitur,  I  hope  I  have  succeeded  in  convincing  you  gentle- 
men that  it  was  not  necessary  for  a  man  of  Shakespeare's 
genius  to  have  been  a  lawyer,  doctor,  or  a  sailor,  a  butcher 
or  a  theologian  in  order  to  have  written  these  great  works 
of  his  that  will  live  through  time. 

Truly,  Ben  Johnson  says  : 

"Thou  art  a  monument  without  a  tomb, 
And  art  alive  still,  while  thy  book  doth  live, 


59 

And  we  have  wits  to  read,  and  praise  to  give. 

He  was  not  of  an  age,  but  for  all  time  !" 

Shakespeare's  description  of  Posthumus  Leonatus,  given 
in  Cymbeline,  Act  i,  Scene  i,  is  applicable  to  himself. 

And  then  again,  what  Canterbury  says  of  King  Henry 
Fifth,  Act  i,  Scene  i  : 

"Hear  him  but  reason  in  divinity, 

And,  all-admiring,  with  an  inward  wish 

You  would  desire  the  king  were  made  a  prelate  : 

Hear  him  debate  of  commonwealth  affairs, 

You  would  say  it  hath  been  all  in  all  his  study  : 

List  his  discourse  of  war,  and  you  shall  hear 

A  fearful  battle  render'd  you  in  music  : 

Turn  him  to  any  cause  of  policy, 

The  Gordian  knot  of  it  he  will  unloose, 

Familiar  as  his  garter :  that,  when  he  speaks, 

The  air,  a  charter'd  libertine,  is  still, 

And  the  mute  wonder  lurketh  in  men's  ears, 

To  steal  his  sweet  and  honey'd  sentences ; 

So  that  the  art  and  practice  part  of  life 

Must  be  the  mistress  to  this  theoric : 

Which  is  a  wonder  how  his  grace  should  glean  it, 

Since  his  addiction  was  to  courses  vain, 

His  companies  unletter'd,  rude,  and  shallow, 

His  hours  fill'd  up  with  riots,  banquets,  sports, 

And  never  noted  in  him  any  study, 

Any  retirement,  any  sequestration, 

From  open  haunts  and  popularity." 

Does  this  not  give  us  an  intimation  of  the  great  intuitive 
genius  of  Shakespeare?  Has  he  not  himself  explained  how 
he  obtained  the  knowledge  and  information  which  his  works 
disclose?  Is  it  possible  to  analyze  inspiration?  And  in  this 


6o 

great  literary  kaleidoscope  do  there  not  shine  forth  so  many 
beautiful  gems  culled  from  all  sources  that  it  is  impossible 
to  account  for  them  except  that  they  are  the  fruits  of  genius 
and  inspiration? 


>  ** 


u|2m»HEgiw.^w™agr 

1 1 ii  i  n  in  in  mi  n 

A     000027474     6 


